Loading...
HomeMy WebLinkAbout2019-11-12; City Council; ; Acquisition of real property commonly known as the Paseo Del Norte Preserve~ CITY COUNCIL • Staff Report Meeting Date: To: From: Staff Contact: Nov. 12, 2019 Mayor and City Council Scott Chadwick, City Manager Curtis M. Jackson, Real Estate Manager curtis.jackson@carlsbadca.gov or 760-434-2836 CA Review rZtl Subject: Acquisition of real property commonly known as the Paseo Del Norte Preserve. Recommended Action Adopt a Resolution authorizing the mayor to execute all appropriate acquisition documents, and for the city clerk to execute the Certificate of Acceptance of the Grant Deed for the acquisition of real property commonly known as the Paseo Del Norte Preserve, located at 6125 Paseo del Norte, from 6125 Paseo Del Norte, LLC to the City of Carlsbad. Executive Summary In November 2018, the City Council authorized the real estate manager to negotiate the acquisition of the Paseo Del Norte Preserve property (Property). Pursuant to City Council direction, staff recommends that the City Co4ncil authorize the mayor to execute all appropriate acquisition documents, and for the city clerk to execute the Certificate of Acceptance of the Grant Deed on behalf of the city for the acquisition of the Property for the purchase price of $94,100. Discussion In March 2017, the city entered into a General Plan Lawsuit Settlement Agreement with the North County Advocates {NCA). Section 4.3.15 of this Settlement Agreement addressed open space {OS) acquisition. Per the Settlement Agreement, the city was to consider acquiring properties listed on the Prop C Open Space and Trails Ad Hoc Committee Property Analysis chart, as well as properties not included on the chart. On Nov. 13, 2018, City Council adopted a Resolution authorizing the city's real estate manager to negotiate with Paseo del Norte, LLC on acquisition of the Paseo del Norte Preserve {Resolution No. 2018-191). The Property is 1.31 acres and is a located at 6125 Paseo del Norte, Carlsbad CA 92011 {APN 211-040-39-00) and is zoned Open Space {OS). On July 13, 2018, the city obtained an appraisal on the Property that determined the fair market value to be $100,000. Subsequent to City Council authorization to negotiate the acquisition of the Property, the city was informed that in December 2018 the owner of the Property received a "Notice of Intent" to acquire a temporary construction easement {TCE) via eminent domain from the California Nov. 12, 2019 Item #6 Page 1 of 95 Department of Transportation (Caltrans). The TCE will encumber a 2,700 square-foot portion of the Property (approximately five % of the total property) for approximately two years, terminating on Dec. 31, 2021. Staff thereafter reduced the proposed purchase price from $100,000 to $94,100 due to the TCE, which is the difference between the appraised fair market value and the price Caltrans paid the property owner for the TCE, or $5,900. Staff recommends that the City Council adopt a Resolution authorizing the mayor to execute all appropriate acquisition documents for the purchase of the Property for $94,100, and for the city clerk to execute the Certificate of Acceptance of the Grant Deed for the acquisition of the Property. Fiscal Analysis As part of the Agreement, Per Section 4.3.15, the city agreed there would be "no maximum funding limit on the amount of city funds made available to acquire property for open space preservation in perpetuity, and the minimum funding amount the city shall make available to acquire property for open space preservation in perpetuity would be $4,000,000." The negotiated price for the Property is $94,100 plus 50% of closing costs, estimated to be approximately $2,500, which is half the estimated $5,000 in total closing costs to be split equally between the city and seller. Funds to acquire the Property shall be appropriated from the Open Space and Trail Acquisition Budget (CIP 40831) in the General Capital Construction Fund in an amount of $100,000 to ensure funding of the acquisition price plus all associated closing cost fees. Next Steps Within three days of the City Council approval of the acquisition, the city and Buyer will open escrow, and shall close the sale of the Property no later than thirty days after opening escrow. Prior to the close of escrow, the Grant Deed conveying the Property to the city shall be executed to facilitate completion of the transaction. Environmental Evaluation (CEQA) The proposed Property transaction does not qualify as a 'project' under the California Environmental Quality Act (CEQA) per Public Resources Code Section 21065 and State CEQA Guidelines Section 15378 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore does not require environmental review. Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the scheduled meeting date. Exhibits 1. City Council Resolution 2. Location Map Nov. 12, 2019 Item #6 Page 2 of 95 RESOLUTION NO. 2019-225 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE ALL APPROPRIATE ACQUISITION DOCUMENTS, AND FOR THE CITY CLERK TO EXECUTE THE CERTIFICATE OF ACCEPTANCE OF THE GRANT DEED FOR THE ACQUISITION OF REAL PROPERTY COMMONLY KNOWN AS THE PASEO DEL NORTE PRESERVE. WHEREAS, on March 14, 2017, the City Council approved the General Plan Lawsuit Settlement Agreement between the City of Carlsbad and North County Advocates (Settlement Agreement); and WHEREAS, The Settlement Agreement directed the city to acquire property for open space preservation in perpetuity; and WHEREAS, on Nov. 13, 2018, the City Council authorized the Real Estate Manager to negotiate the acquisition of the Paseo Del Norte Preserve (Property) by Resolution No. 2018-191; and WHEREAS, the Property is 1.31 acres and is a located at 6125 Paseo del Norte, Carlsbad CA 92011 (APN 211-040-39-00) and is zoned Open Space (OS); and WHEREAS, on Jan. 15, 2019, the Real Estate Manager presented price and terms for the acquisition of the Property to City Council in Closed Session and was given direction by City Council to move forward with the acquisition; and WHEREAS, the city and Seller have agreed to the purchase price of $94,100; and WHEREAS, the acquisition of the Property does not qualify as a 'project' under the State CEQA Guidelines pursuant to Section 21065 and 15378 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore does not require environmental review. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Council hereby approves the acquisition of the property located at 6125 Paseo del Norte, Carlsbad, CA 92011, APN 211-040-39-00 from Paseo Del Norte, LLC in an amount of ninety-four thousand one hundred dollars ($94,100). 3. That the purchase and sale agreement, which is attached hereto as Attachment A, is approved as to form, and the Mayor is hereby authorized and directed to execute the agreement. 4. That the city clerk is authorized to execute the Certificate of Acceptance of the Deed for the property, upon preparation by the escrow officer and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of November 2019, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Schumacher. NAYS: None. ABSENT: None. Nov. 12, 2019 Item #6 Page 3 of 95 P:01305551.6:07897.008 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY BY AND BETWEEN THE CITY OF CARLSBAD A MUNICIPAL CORPORATION AS BUYER AND 6125 PASEO DEL NORTE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS SELLER PROPERTY: 6125 PASEO DEL NORTE CARLSBAD, CA 92011 -1- Nov. 12, 2019 Item #6 Page 4 of 95 AGREEMENT FOR PURCHASE AND SALE AGREEMENT OF REAL PROPERTY This PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into as of November 20, 2019 ("Effective Date") by and between 6125 PASEO DEL NORTE, LLC, a California limited liability company ("Seller"), and the CITY OF CARLSBAD, a California municipal corporation ("Buyer"). This Agreement shall be effective as of the date this Agreement is approved by the Carlsbad City Council and has been signed by both parties hereto (the "Effective Date"). WHEREAS, Seller desires to sell the Property described below to Buyer; and WHEREAS, Buyer desires to purchase the Property and has determined that buying the Property for open space acquisition would be a benefit to the public. NOW THEREFORE, in consideration of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties hereto agree as follows: ARTICLE 1 RECITALS 1.1 Description of Property. Seller is the owner of a fee interest in that certain real property commonly referred to as Paseo del Norte Preserve, consisting of approximately 1.31 gross acres in the City of Carlsbad (the "City''), County of San Diego (the "County''), State of California (the "State"), and more particularly described in Exhibit A attached hereto, and approximately shown on Exhibit B attached hereto. For the purposes of this Agreement such real property and the improvements thereon (if any) are collectively referred to herein as the "Property". 1.2 Purpose of Agreement. Buyer desires to purchase the Property from Seller and Seller desires to sell the Property to Buyer on the terms, covenants and conditions as set forth in this Agreement. 1.3 Public Benefit. This Agreement is for the benefit of the public and is in the furtherance of the public purposes of Buyer. ARTICLE 2 GENERAL PROVISIONS 2.1 Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any similar terms, as used in this Agreement, shall refer to this Agreement. 2.2 Business Days. In any case where a date for performance by either party shall fall on a day that is not a business day, the time for performance shall automatically extend to the next regular P:01305551.6:07897 .008 - 2 - Nov. 12, 2019 Item #6 Page 5 of 95 business day. As used in this Agreement, "business day" means any day that is not a Saturday or Sunday and is not a federal or state holiday recognized by the Title Company or Escrow Agent. ARTICLE 3 PURCHASE AND SALE OF PROPERTY 3.1 Sale of Property. Seller agrees to sell and Buyer agrees to purchase the Property on the terms and conditions in this Agreement. The Property is subject to that certain Declaration of Restrictive Covenants dated August 29, 2016, recorded November 28, 2016 as Document Number 2016- 0646521 in the County of San Diego Official Records (the "Restrictive Covenants", a copy of which is attached as Exhibit E). 3.2 Disclosures related to the Restrictive Covenants. Buyer represents, warrants and acknowledges that Buyer has been informed and is aware that: (a) the Restrictive Covenants create covenants to provide mitigation for certain impacts of the Project known as 6125 Paseo Del Norte -CDP 15-17A, pursuant to requirements of Condition No. 5 of the City of Carlsbad Planning Commission Resolution No. 7167, dated May 4, 2016 ("Planning Commission Condition") for the Coastal Development Permit Amendment for such project; (bl use restrictions imposed by the Restrictive Covenants include restrictions on any additional easements, rights of way or other interests in the surface or subsurface of the Property and impose on the owner of the Property the obligation to establish an endowment fund as a means to provide sufficient funds for perpetual management, maintenance and monitoring of the Property (the "Endowment Fund"); (cl Buyer, the California · Department of Fish and Wildlife ("CDFW") and the United States Fish and Wildlife Service ("USFWS") have review and approval rights with respect to the terms of the endowment agreement (and any amendments) and are described as third party beneficiaries of the endowment agreement in the Restrictive Covenants; (d) Seller has not established or funded the Endowment Fund as of the date of this Agreement and will not fund the Endowment Fund prior to or in connection with conveyance of the Property to Buyer or from funds received in conveyance of the Property to Buyer; (el the Property must be retained in perpetuity in a natural condition, is subject to in-perpetuity maintenance, management and monitoring (as described in the Restrictive Covenants and in the Paseo Del Norte Preserve Management Plan dated June, 2016 (the "Management Plan") and is subject to habitat creation or restoration, implementation, maintenance and monitoring activities by the Restoration Plan dated June, 2016 (the "Restoration Plan") and the Planning Commission Condition; (fl in connection with the Management Plan and Restoration Plan, Seller has entered into contracts with Helix Environmental Planning, Inc. relating to the Property (collectively, the "Management Plan and Restoration Plan Service Contracts") attached hereto as Exhibit F: (g) the Property is subject to Hold Harmless Agreement-- Drainage dated July 28, 2016 which was connected with the City's approval of a drainage plan for development to occur on the Property and adjacent property (the "Drainage Hold Harmless Agreement") and (h) Hold Harmless Agreement-Geologic Failure dated July 11, 2016 which was connected with the City's approval of a grading plan for development to occur on the Property and adjacent property (the "Geologic Failure Hold Harmless Agreement"). 3.3 Assignment and Assumption of Obligations under the Restrictive Covenants. Management Plan. Restoration Plan. Management Plan and Restoration Plan Service Contracts. Caltrans Temporary Construction Easement and Hold Harmless Agreements. Upon close of escrow, Seller agrees to assign to Buyer all of Seller's right, title and interest in and to, and Buyer agrees to assume all of Seller's obligations under and in relation to, all contracts, instruments, declarations and covenants reflecting or relating to the Restrictive Covenant, the Management Plan and the Restoration Plan, P:01305551.6:07897 .008 - 3 - Nov. 12, 2019 Item #6 Page 6 of 95 including, without limitation: (a) the Management Plan and Restoration Plan Service Contracts; (b) the Management Plan; (c) the Restoration Plan; (d) the Restrictive Covenants; (e) the Caltrans Temporary Construction Easement. Upon close of escrow, Seller agrees to assign to Buyer Seller's right, title and interest in and to (as respects the Property only), and Buyer agrees to assume Seller's obligations (as respects the Property only) under and in relation to (f) the Drainage Hold Harmless Agreement and (g) the Geologic Failure Hold Harmless Agreement. Buyer hereby agrees that Buyer shall accept title to the Property subject to the terms of each of the described items (a) through (g) of this Section 3.3 and the items described in the Preliminary Report (as amended). 3.4 Purchase Price. The purchase price of the Property is NINETY-FOUR THOUSAND ONE HUNDRED DOLLARS ($94,100.00) (the "Purchase Price"). ARTICLE 4 CONDITIONS PRECEDENT 4.1 Conditions Precedent to Closing. Buyer's obligation to purchase the Property from Seller is subject to the following conditions precedent set forth in this Article 4 ("Conditions Precedent"). If any of the Conditions Precedent have not been fulfilled within the applicable time periods or if Buyer disapproves, pursuant to this Article 4, any matter or matters for which Buyer's approval is required, Buyer may: (a) Waive the condition or disapproval and close escrow with respect to the Property in accordance with this Agreement, without adjustment or rebate in the Purchase Price; (b) Cure the failure of the condition or representation and reduce the Purchase Price by the amount equal to the cost to cure; or (c) Terminate this Agreement by written notice to Seller. 4.2 Inspection and Feasibility Period. (a) Seller hereby consents to entry upon the Property by Buyer or its officers, employees, contractors and agents for the purpose of conducting physical inspections and tests from the Effective Date of this Agreement to the Close of Escrow. Buyer shall have thirty (30) calendar days from the Effective Date of this Agreement ("Feasibility Period") in which to complete its inspections, testing and feasibility studies of the Property, including but not limited to, inspection and examination of soils, environmental factors, Hazardous Substances, if any, and archeological information relating to the Property, and a review and investigation of the effect of any zoning, map, permits, reports, engineering data, regulations, ordinances, and laws effecting the Property. If Buyer disapproves of the results of the inspection and review, Buyer may elect to terminate this Agreement by giving Seller written notification on or before the last day of the Feasibility Period. If Buyer fails to properly notify Seller of the intent to terminate this Agreement, Buyer shall be deemed to be satisfied with the results of the inspection and shall be deemed to have waived the right to terminate this Agreement pursuant to this provision. (b) Buyer agrees to defend, indemnify and hold Seller harmless from all liabilities, costs and expenses resulting directly from Buyer's or its officers', employees', contractors' or agents' inspections and tests, except to the extent relating to Seller's grossly negligent acts, omissions or willful misconduct or the mere discovery of a pre-existing condition with respect to the Property. The foregoing obligations of Buyer shall survive the Closing or termination ofthis Agreement. If Buyer alters the physical P:01305551.6:07897 .008 -4- Nov. 12, 2019 Item #6 Page 7 of 95 conditions of the Property and Escrow does not close, Buyer shall restore the Property to the condition existing before Buyer's inspections or tests. If this Agreement is terminated, Buyer agrees to deliver all reports related to its inspection of the Property upon written request from Seller. 4.3 Preliminary Title Report. (a) Upon opening the Escrow, Seller shall cause Stewart Title or another title insurance company mutually approved in writing by Seller and Buyer ("Title Company") to issue and deliver to Buyer a preliminary title report for the Property, containing such exceptions as the Title Company would specify in a ALTA extended owner's policy of title insurance (collectively, the "Preliminary Report"), together with copies of all exceptions and plotted easements and the documents supporting the exceptions (collectively, the "Supporting Documents"). (b) Within fifteen (15) days after receipt of legible copies of the Preliminary Report and Supporting Documents, Buyer shall give written notice to Seller of any disapproval of the Preliminary Report or any part thereof, or of any exceptions, or of the condition of title reflected in the Preliminary Report or the Supporting Documents ("Buyer's Title Notice"). The CalTrans Temporary Construction Easement (as defined in Section 10.1 below), any documents related to such CalTrans Temporary Construction Easement, the Restrictive Covenants (and all easements created or reserved therein), the Management Plan, the Restoration Plan, the Drainage Hold Harmless Agreement and the Geologic Failure Hold Harmless Agreement shall each be deemed a permitted exception to title and not subject to condition, disapproval or subject to approval by Buyer only if a specified title endorsement is issued as to any of such documents (collectively, the "Permitted Exceptions"). If Buyer gives written notice of disapproval as provided in this paragraph, Seller shall remove or otherwise cure, in a manner reasonably satisfactory to Buyer, the disapproved item or items at or before the Close of Escrow, except that Seller may elect not to remove or cure any disapproved item or items by delivering written notice thereof to Buyer within ten (10) days following the date of written notification of the disapproval. If Seller elects not to remove or cure any disapproved item or items, Buyer may terminate this Agreement by delivering a written notice of termination to Seller within ten (10) days after the date that Buyer actually receives notice of Seller's election not to remove or cure any disapproved item. (c) Buyer shall receive title free and clear of liens and encumbrances, except as otherwise provided in this Agreement. Seller shall be obligated to pay any property taxes and assessments to the date of the Close of Escrow. The parties recognize that certain encumbrances such as existing deeds of trust, tax liens, assessment liens, and the like will be discharged through Escrow as provided in this Agreement. Notwithstanding the giving of any notice or any failure to give any notice with respect to these items, they shall be discharged through Escrow as provided in this Agreement. (d) From and after the effective date of the Preliminary Report, Seller shall not alter the condition of title without the express written consent of Buyer. If the Title Company issues any supplemental or amended title commitment or title report, or any modification of any proforma title policy negotiated between Buyer and Title Company, identifying any additional exceptions to title on or after delivery of Buyer's Title Notice, Buyer shall have five (5) days to notify Seller in writing of any objections to such additional exceptions, and if Seller does not elect, within (5) days thereafter, to remove or cure any disapproved item or items, Buyer may terminate this Agreement by delivering a written notice of termination to Seller within fifteen (15) days after the date that Buyer notified Seller of the disapproved item. P:01305551.6:07897 .008 - 5 - Nov. 12, 2019 Item #6 Page 8 of 95 4.4 Title Policies. Prior to the Close of Escrow, Buyer shall have received evidence that Title Company is ready, willing and able to issue, upon payment of the Title Company's regularly scheduled premium, an ALTA extended coverage owner's policy of title insurance, in the amount of the Purchase Price, showing fee title to the Property vested in Buyer, subject only to the exceptions approved by Buyer, including any endorsements requested by Buyer, and dated as of the date of Closing (collectively, the "Title Policy"), provided that if Buyer fails to obtain a new or updated ALTA Survey for the Property, the Title Policy may include an exception for any matters that would appear on an accurate, current ALTA Survey (that aren't shown on the most recent existing ALTA Survey for the Property, if any). Prior to Closing, Seller shall execute and deliver to the Title Company such affidavits, indemnities, resolutions, authorizations, and other company documents or agreements relating to Seller and/or the Property as are reasonably required by the Title Company to issue the Title Policy. 4.5 Physical Condition of the Property. Within the Feasibility Period, Buyer shall review and approve or disapprove of the physical condition of the Property pursuant to Section 4.2 above. Seller shall not cause the physical condition of the Property to deteriorate or change after expiration of the Feasibility Period, normal wear and tear excepted, without the prior written consent of Buyer. Buyer agrees that the Property is being sold in its "As-ls" and "Where-ls" condition, except as expressly provided for elsewhere herein. Buyer is obligated to investigate, inspect and analyze the condition of the Property and the condition of title to the Property to its own satisfaction and expressly agrees that in entering into the Agreement, it is relying on its own investigation as to the physical condition of the Property, condition of title to the Property, and the suitability of the Property for Buyer, except as expressly provided herein. Buyer is not relying on any representations by Seller regarding the Property except as set forth in this Agreement or any closing document executed by Seller. 4.6 Property Documents. Within seven (7) calendar days after the date of this Agreement, Seller shall deliver to Buyer current copies of all permits, soils tests, hazardous or toxic waste reports, geological studies, environmental impact studies, topographical maps, architectural plans, surveys, specifications, licenses, maintenance contracts, service contracts, utility contracts, operating contracts, leases, and other documents in Seller's possession or reasonable control pertaining to the Property (collectively, the "Property Documents"). During the Feasibility Period, Buyer shall review each Property Document which may be disapproved by Buyer pursuant to Section 4.2 above. On or before the Close of Escrow, Seller shall assign to Buyer all of Seller's rights and remedies under the Property Documents, to the extent assignable, pursuant to an assignment of contracts, warranties, guarantees, and other intangible property in form and substance reasonably satisfactory to Buyer (the "General Assignment"). At the written request of Buyer, the General Assignment shall exclude any Property Documents designated by Buyer. At the request of Buyer, Seller shall use its commercially reasonable efforts to obtain the consent to assignment of any other parties to the Property Documents as specified by Buyer in writing. At the written request of Buyer, Seller shall terminate any Property Document designated by Buyer in writing (to the extent such Property Document may be terminated), by delivering notices to the other party under the Property Document in sufficient time to terminate the Property Document prior to the Close of Escrow. 4.7 Seller's Obligations. Prior to the Close of Escrow, Seller shall have performed every material covenant, agreement and promise to be performed by Seller pursuant to this Agreement and the related documents executed or to be executed by Seller. P:01305551.6:07897.008 - 6 - Nov. 12, 2019 Item #6 Page 9 of 95 4.8 Seller's Representations. Seller's representations and warranties as set forth in this Agreement and in documents provided by Seller under this Agreement shall remain true and accurate as of the Close of Escrow except as otherwise disclosed to Buyer in writing prior to the Close of Escrow. 4.9 Buyer's Representations. Buyer's representations and warranties as set forth in this Agreement and in documents provided by Buyer under this Agreement shall remain true and accurate as of the Close of Escrow except as otherwise disclosed to Seller in writing prior to the Close of Escrow. ARTICLE 5 SELLER'S REPRESENTATIONS AND WARRANTIES The representations and warranties by Seller in this Article are made as of the Effective Date and as of the Close of Escrow and will survive the Close of Escrow and the recording of the Grant Deed (for the applicable period set forth below). Seller represents and warrants to Buyer that: 5.1 Title. As of the date of this Agreement and the Close of Escrow, Seller is and will be the legal and equitable owner of the Property, with full right to convey, except as otherwise provided in this Agreement. Seller has not previously conveyed title to the Property to any other person. Seller has not granted any options or rights of first refusal or rights of first offer to third parties to purchase or otherwise acquire an interest in the Property. The Property is free and clear of all liens, encumbrances, claims, demands, easements, leases, agreements, covenants, conditions, or restrictions of any kind, except for the exceptions set forth in the Preliminary Report. Seller has obtained (or will obtain as of Close of Escrow) all required consents, permissions or releases to convey good and marketable title to Buyer. With respect to the Restrictive Covenants, Seller shall provide the required written notices of the transfer of the Property to the CDFW and USFWS. 5.2 Hazardous Substances. (a) To Seller's actual knowledge the Property is free from Hazardous Substances and is not and has never been in violation of any Environmental Laws (except as otherwise disclosed in writing to Buyer). Seller has received no written notice, warning, notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging that the Property is or has been in violation of any Environmental Law, or informing Seller that the Property is subject to investigation or inquiry regarding Hazardous Substances on the Property or the potential violation of any Environmental Law. (b) As used herein, the term "Environmental Laws" means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, or pertaining to occupational health or industrial hygiene, to the extent that such relate to matters on, under, or about the Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 USC§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USC§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution control Act (FWPCA) [33 USC § 1251 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USC § 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC § 136 et seq.); the Superfund Amendments and Reauthorization Act [42 USC§ 6901 et seq.]; the Clean Air Act [42 USC§ 7401 et seq.]; the Safe Drinking Water Act [42 USC § 300f et seq.]; the Surface Mining Control and Reclamation Act [30 USC § 1201 et P:01305551.6:07897.008 -7 - Nov. 12, 2019 Item #6 Page 10 of 95 seq.]; the Emergency Planning and Community Right to Know Act [42 USC § 11001 et seq.]; the Occupational Safety and Health Act [29 USC § 655 and 657]; the California Underground Storage of Hazardous Substances Act [Health and Safety Code § 25280 et seq.]; the California Hazardous Substances Account Act [Health and Safety Code § 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [Health and Safety Code § 24249.5 et seq.]; the Porter-Cologne Water Qualify Act [Water Code § 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to the protection of the environment as such apply to matters on, under, or about the Property. (c) As used herein, the term "Hazardous Substances" means: (i) those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste." or "pollutant or contaminant" in any Environmental Law; (ii) those substances listed in the United States Department of Transportation Table [49 CFR 172.101], or by the Environmental Protection Agency, or any successor agency, as hazardous substances [40 CFR Part 302]; (iii) any other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (iv) any material, waste, or substance that is a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 USC § 1321 or listed pursuant to 33 USC § 1317, a hazardous substance or toxic material designated pursuant to any State Statute, a flammable explosive or a radioactive material. 5.3 Violation of Law. To Seller's actual knowledge, no condition on the Property violates any health, safety, fire, environments, building, zoning or other federal, state, or local law, code, ordinance, or regulation. 5.4 Litigation. There is no pending or, to Seller's actual knowledge, and without any obligation to investigate, threatened (in writing) litigation, administrative proceeding, or other legal or governmental action or condemnation with respect to the Property or which may adversely affect Seller's ability to fulfill the obligations of this Agreement. 5.5 Bankruptcy. No filing or petition under the United States Bankruptcy Law or any insolvency laws, or any laws for composition of indebtedness or for the reorganization of debtors has been filed with regard to Seller. 5.6 No Defaults. To Seller's actual knowledge, and without any obligation to investigate, and except for any of Seller's obligations under or relating to the Restrictive Covenant, the Endowment Fund, the endowment agreement, the Management Plan and the Restoration Plan: (a) Seller is not in default of Seller's obligations or liabilities pertaining to the Property with the exception of Seller's obligations under or related to the Restrictive Covenant and the Endowment Fund including, without limitation, the obligations to establish and fund the Endowment Fund and all obligations related to such fund (the "Endowment Fund Item") which Seller has not performed and (b) there are no facts, circumstances, conditions or events, which after notice or lapse of time would constitute default (except as excluded above). Seller has not received any written notice of any default and has no reason to believe that there is likely to be any breach or default of any of Seller's obligations or liabilities pertaining to the Property (except as excluded above). P:01305551.6:07897.008 - 8 - Nov. 12, 2019 Item #6 Page 11 of 95 5.7 Special Studies Zone. To Seller's actual knowledge, and without any obligation to investigate, the Property is not within a special studies zone under the Alquist-Priolo Geologic Hazard Act [Pub. Res. Code§§ 2621.9 et seq.] (which generally requires sellers to inform purchasers if property is within a special studies zone, which zones are generally near potentially or recently active earthquake faults), unless otherwise disclosed to Buyer in writing. 5.8 Foreign Investment Real Property Tax Act. Seller is not a "foreign person" within the meaning of 42 USC § 1445(f)(3). Seller understands and agrees that the certification made in this section may be disclosed to the Internal Revenue Service and that any false statement contained herein could be punished by fine, imprisonment or both. This certification is made under penalty of perjury under the laws of the State of California. 5.9 Intentionally Omitted. 5.10 Status of Seller. Seller is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware and in good standing under the laws of the State of California. 5.11 Authority of Seller. Seller is duly authorized to enter into this Agreement, to sell the Property to Buyer and to perform the actions and duties of Seller more particularly described in this Agreement. The provisions of this Agreement are and will be the valid and legally enforceable obligations of Seller in accordance with their terms and the terms of this Agreement. 5.12 No Violation of Other Agreements. To Seller's actual knowledge, and without any obligation to investigate, neither the execution and delivery of this Agreement, nor the fulfillment of and compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of terms or violation of any other agreement to which Seller is a party or by which Seller is bound, or constitutes a default under any of the foregoing. 5.13 Brokers. Seller has not retained the services of or had any dealings with any broker, finder or real estate licensee and owes no person or entity any finder's or broker's fee, commission or payment of any kind whatsoever. Seller shall indemnify, defend and hold harmless Buyer from and against all claims for any such compensation claimed by any broker, real estate agent or other third party claiming through Seller. 5.14 To Seller's actual knowledge, the Property is not subject to any encumbrances other than those appearing of record and ascertainable from the Preliminary Report and as disclosed in this Agreement. Except with respect to any claims arising out of any breach of covenants, representations or warranties set forth in this Agreement, Buyer (subject to the Survival Period (as defined below)), for itself and its agents, affiliates, successors and assigns, hereby releases and forever discharges Seller, its agents, affiliates, successors and assigns from any and all rights, claims and demands at law or in equity, whether known or unknown at the time of this Agreement, which Buyer has or may have in the future, arising out of arising out of, or in any way connected with, the condition of the Property, including, without limitation, title, the environmental and the structural condition of the Property. Buyer shall, upon the Closing, and, by the execution of this Agreement, hereby does, forever release Seller of and from any environmental claims and causes of action existing now or hereafter created or enacted, whether at common law or by federal, state, county, or municipal law or ordinance. Buyer agrees never P:01305551.6:07897 .008 - 9 - Nov. 12, 2019 Item #6 Page 12 of 95 to commence, aid in any way, or prosecute against Seller, its officers, directors, managers, members, partners, affiliates, agents and employees and its and their respective successors, any action or other proceeding based upon any losses, liabilities, damages, claims, demands causes of action, costs or expenses included in the foregoing release. For the foregoing purposes, Buyer hereby specifically waives the provisions of Section 1542 of the California Civil Code and any similar law of any other state, territory or jurisdiction. Section 1542 provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." Buyer hereby specifically acknowledges that Buyer has carefully reviewed this subsection and discussed its import with legal counsel and that the provisions of this subsection are a material part of this Agreement. Buyer's Initials By proceeding with the Close of Escrow, Buyer shall be deemed for all purposes to have remade as of the Close of Escrow, all of the statements set forth in this Section 5. ARTICLE 6 BUYER'S REPRESENTATIONS AND WARRANTIES The representations and warranties by Buyer in this Article are made as of the Effective Date and as of the Close of Escrow and will survive the Close of Escrow and the recording -of the Grant Deed. Buyer represents and warrants to Seller that: 6.1 Status of Buyer. Buyer is a municipal corporation duly organized, validly existing and in good standing under the laws of the State of California. 6.2 Authority of Buyer. Buyer is duly authorized to enter into this Agreement. The provisions of this Agreement are and will be the valid and legally enforceable obligations of Buyer in accordance with their terms and the terms of this Agreement. 6.3 No Violation of Other Agreements. Buyer hereby represents that neither the execution and delivery of this Agreement, nor the fulfillment of and compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of terms or violation of any other agreement to which Buyer is a party or by which Buyer is bound, or constitutes a default under any of the foregoing. 6.4 No Violation of Other Agreements by Seller. Buyer hereby represents that Buyer does not know of any claims against, or liabilities of Seller with respect to the Property, any agreements, instruments, declarations and/or covenants relating to or affecting the Property and/or Seller's ownership of the Property. P:01305551.6:07897.008 -10 - Nov. 12, 2019 Item #6 Page 13 of 95 6.5 Brokers. Buyer has not retained the services of or had any dealings with any broker, finder or real estate licensee and owes no person or entity any finder's or broker's fee, commission or payment of any kind whatsoever. Buyer shall indemnify, defend and hold harmless Seller from and against all claims for any such compensation claimed by any broker, real estate agent or other third party claiming through Buyer. 6.6 Disclaimer. Buyer acknowledges and agrees that it has been provided the opportunity to thoroughly inspect, investigate and exercise due diligence, and the opportunity to fully and independently become familiar with, and fully satisfy itself regarding, any and all matters relating to the Property. Except as expressly provided in this Agreement or any documents delivered to Buyer by Seller in connection with the Closing, Seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to (i) the value of the Property; (ii) the income to be derived from the Property; (iii) the suitability of the Property for any and all activities and uses which Buyer may conduct thereon, including, without limitation, the possibilities for future development of the Property; (iv) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property; (v) the manner, quality, state of repair or lack of repair of the Property; (vi) the nature, quality or condition of the Property, including, without limitation, the water, soil and geology; (vii) the compliance of or by the Property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body including, without limitation, Title Ill of the Americans With Disabilities Act of 1990; (viii) the manner or quality of the construction or materials incorporated into the Property; (ix) compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements including, without limitation, the Federal Water Pollution Control Act, the Federal Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act of 1976, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and regulations promulgated under any of the foregoing; (x) the presence or absence of hazardous materials at, on, under, or adjacent to the Property including, but not limited to, petroleum products, asbestos, lead-based paint, mold or fungi, (xi) the content, completeness or accuracy of any items delivered or made available to Buyer pursuant to Section 3.1; (xii) the conformity of the Improvements to any plans or specifications for the Property, including any plans and specifications that may have been or may be provided to Buyer; (xiii) the conformity of the Property to past, current or future applicable zoning or building requirements; (xiv) deficiency of any undershoring; (xv) deficiency of any drainage; (xvi) the fact that all or a portion of the Property may be located on or near an earthquake fault line; (xvii) the existence of vested land use, zoning or building entitlements affecting the Property; and (xviii) any matters arising from or relating to Seller's alleged superior knowledge or breach of any duty to disclose. Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person. Except as otherwise provided in this Agreement, Buyer further acknowledges and agrees that to the maximum extent permitted by law, the sale of the Property as provided for herein is made on an "AS-IS" "WHERE IS" "WITH ALL FAULTS" condition and basis as of the Close of Escrow, and that Seller has no obligations to make repairs, replacements or improvements, whether before or after the Close of Escrow. Buyer represents, warrants and covenants to Seller, which representation, warranty, and covenant will survive the Close of Escrow and not be merged with the deed, that, except for the representations and warranties set forth in this Agreement, Buyer will solely rely upon Buyer's own investigation of the Property and all other P:01305551.6:07897 .008 -11- Nov. 12, 2019 Item #6 Page 14 of 95 matters relating to the Property, and not on any information provided or to be provided by Seller or anyone acting on Seller's behalf. ARTICLE 7 COVENANTS 7.1 Payment of Seller's Obligations. To the extent Seller is authorized by the Property Documents, Seller shall discharge all obligations and liabilities under the Property Documents before the Close of Escrow with respect to the Property with the exception of the Endowment Fund Item which obligation shall be assumed by Buyer upon Closing. 7.2 Litigation. Seller shall immediately notify Buyer of any lawsuits, condemnation proceedings, rezoning, or other governmental order or action, or any threat thereof, of which Seller has actual knowledge, which might affect the Property or any interest of Buyer with respect to the Property. 7.3 Indemnification. (a) Seller shall indemnify, defend and hold harmless Buyer from all causes of action, claims, demands, losses, liabilities, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses (collectively, "Claims"), arising from (i) any breach by Seller of this Agreement, (ii) Seller's false representations under this Agreement or in any related document, or (iii) any transactions or occurrences relating to the Property prior to the Close of Escrow (with the exception of the Endowment Fund Item and any obligation assumed by Buyer under this Agreement); except to the extent of or resulting from the sole or active negligence or willful misconduct of Buyer or Buyer's officers or employees. Notwithstanding anything to the contrary in this Agreement or applicable laws, Seller shall not be liable for any Claims arising from, or related to, this Agreement or the Property in excess of the amount of the Purchase Price (the "Liability Cap"). (b) Buyer shall indemnify, defend and hold Seller harmless from all Claims arising from (i) any breach by Buyer of this Agreement or any related document, or (ii) Buyer's false representations under this Agreement or in any related document; except to the extent resulting from the gross negligence or willful misconduct of Seller or Seller's officers or employees. (c) The provisions of this Section 7.3 shall survive the Close of Escrow with respect to the Property for the Survival Period (as defined below). (d) At Closing, Seller shall convey title to the Property to Buyer by Grant Deed, free and clear of all liens and encumbrances, except as otherwise provided in this Agreement. ARTICLE 8 ESCROW 8.1 Establishment of Escrow. Within three (3) business days after the Effective Date, Buyer and Seller shall establish an Escrow for the close of the sale of the Property with the escrow department of the Title Company ("Escrow Agent"). Escrow Agent shall notify both parties in writing of the specific date on which the Escrow has opened. This Agreement shall constitute Escrow Instructions, provided however, that Escrow Agent shall prepare general instructions as may be deemed necessary by the Escrow Agent for the fulfillment of this Agreement and deliver those general instructions to Seller and Buyer. Buyer and Seller shall each execute the general instructions, or propose changes thereto, within P:01305551.6:07897 .008 -12 - Nov. 12, 2019 Item #6 Page 15 of 95 the time reasonably required by Escrow Agent. If there is any conflict between the terms of the general instructions and this Agreement, the provisions of this Agreement shall prevail unless the conflicting provision is specifically identified as an amendment to this Agreement. 8.2 Opening Deposits. Buyer shall not be required to deliver any funds to Escrow Agent as an opening deposit. 8.3 Closing. Subject to the conditions to Closing stated in this Agreement, the Grant Deed shall be recorded and the Property transferred from Seller to Buyer ("Close of Escrow" or "Closing") on the date that is thirty (30) days after the Effective Date ("Closing Deadline"). Notwithstanding the foregoing, Buyer shall have the right to extend the Closing Deadline by up to two (2) periods of thirty (30) days each (each an "Extension Period") by releasing to Seller through the Escrow Agent the amount of TWO THOUSAND FIVE HUNDRED and No/100 Dollars ($2,500.00) ("Extension Payment") for each Extension Period. The Extension Payment, if made, shall be applicable to the Purchase Price and non-refundable to Buyer, except in the event of Seller's default. Unless the date for the Close of Escrow is extended by written agreement of the parties, Escrow shall close no later than the Closing Deadline, subject to the Extension Periods. 8.4 Closing Deposits. On or before the Close of Escrow, Seller and Buyer shall deposit with Escrow Agent the following documents and shall close Escrow as follows: (a) Seller shall deposit with Escrow Agent the following at least one business day prior to the Closing Deadline: (i) An original executed and acknowledged grant deed conveying the Property from Seller to Buyer, in the form attached hereto as Exhibit C (the "Grant Deed"); (ii) The original Non-Foreign Affidavit executed by Seller; (iii) The originals of all Property Documents, except for those documents that, by law, Seller must keep in its custody; (iv) An original certificate of non-foreign status in the form attached hereto as Exhibit D ("FIRPTA Certificate"), duly executed by Transferor (as defined therein), and a California form 593-C (California Real Estate Withholding Certificate); (v) An estimated closing statement in form and content satisfactory to Buyer and Seller (the "Closing Statement") duly executed by Seller; (vi) Assignment and Assumption Agreements as to the Management Plan and Restoration Plan and the Management Plan and Restoration Plan Service Contracts, duly executed by Seller; and (vii) Any other documents or funds required of Seller to close Escrow in accordance with this Agreement. (b) Buyer shall deposit with Escrow Agent the following at least one business day prior to the Closing Deadline: P:01305551.6:07897 .008 -13 - Nov. 12, 2019 Item #6 Page 16 of 95 (i) The balance of the Purchase Price for the Property in cash; (ii) Additional cash in the amount necessary to pay Buyer's share of closing costs as set forth in this Agreement or the escrow instructions and that portion of the Title Policy in excess of the premium for a Cl TA Standard Policy of Title Insurance in an amount covering the Purchase Price; (iii) The Closing Statement, duly executed by Buyer; (iv) Assignment and Assumption Agreements as to the Management Plan and Restoration Plan and the Management Plan and Restoration Plan Service Contracts, duly executed by Buyer, and (v) Any other document or funds required of Buyer to close Escrow in accordance with this Agreement. 8.5 Closing Costs. Seller shall pay the premium for a CL TA Standard Policy of Title Insurance in an amount covering the Purchase Price, all of the real property transfer taxes and documentary transfer taxes (if any) payable upon recordation of the Grant Deed for the Property, and any sales, use or ad valorem taxes connected with the Close of Escrow for the Property. Buyer shall pay that portion of the premium for the Title Policy in excess of the premium for a Cl TA Standard Policy of Title Insurance in an amount covering the Purchase Price. Buyer and Seller shall each pay one-half of the Escrow Agent charges. 8.6 Property Taxes and Prorations. Seller shall be solely responsible for bringing the Property's real property taxes current as of the Close of Escrow and Buyer shall have no liability for payment of taxes accrued prior to the Close of Escrow. It is recognized that Seller is a tax-exempt governmental agency. 8.7 Possession. Right to possession of the Property, or the applicable parcel, shall transfer at Close of Escrow free of all tenancies but shall be subject to the CalTrans Temporary Construction Easement (as defined below), the Restrictive Covenant, the Management Plan and the Restoration Plan. Buyer acknowledges that Buyer's purchasing of the Property is subject to (a) the CalTrans Temporary Construction Easement, (b) the Permitted Exceptions and (c) obligations under the endowment agreement and the Endowment Fund. 8.8 Closing Escrow. Upon the Closing, Escrow Agent shall: (i) cause the Grant Deed to be recorded in the Official Records of the County and deliver a conformed copy of the recorded Grant Deed to Buyer; (ii) deliver an original (or copy if an original is not available) of each closing document to each of Buyer and Seller; (iii) cause the Title Company to issue the Title Policy to Buyer; and (iv) deliver to Seller the Purchase Price less applicable prorations and charges, pursuant to the Closing Statements approved by Buyer and Seller. ARTICLE 9 MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS 9.1 Further Assurances. Whenever requested by the other party, each party shall execute, acknowledge, and deliver any further conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents and any other instrument or document as may be P :01305551.6:07897 .008 -14 - Nov. 12, 2019 Item #6 Page 17 of 95 necessary, expedient or proper to complete the transaction contemplated by this Agreement, and to do any other acts and to execute, acknowledge, and deliver any requested document to carry out the intent and purpose of this Agreement. 9.2 Assignment. Seller shall have no right, power, or authority to assign or mortgage this Agreement or any portion of this Agreement, or to delegate any duties or obligations arising under this Agreement, voluntarily, involuntarily, or by operation of law, without the prior written consent of Buyer. Buyer shall have no right, power, or authority to assign this Agreement or any portion of this Agreement or to delegate any duties or obligations arising under this Agreement, voluntarily, involuntarily or by operation of law without Seller's prior written approval except to an entity owned or controlled by Buyer. Neither party shall unreasonably withhold approval to any assignment. 9.3 Preservation and Inspection of Documents. Documents received by Seller or Buyer under the provisions of this Agreement shall be retained in their respective possessions and shall be subject at all reasonable times to the inspection of the other party hereto and its assigns, agents and representatives, any of whom may make copies thereof. 9.4 Parties of Interest. Nothing in this Agreement, expressed or implied, is intended to or shall be construed to confer upon or to give to any person or party other than Seller and Buyer any rights, remedies or claims under or by reason of this Agreement or any covenant, condition or stipulation hereof; and all covenants, stipulations, promises and agreements in this Agreement made by or on behalf of Seller or Buyer shall be for the sole and exclusive benefit of Seller and Buyer. 9.5 No Recourse under Agreement. Except as otherwise provided in this Agreement, all covenants, stipulations, promises, agreements and obligations of the parties hereto contained in this Agreement shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the parties hereto, respectively, and not of any member, officer, employee or agent of the parties hereto in an individual capacity, and no recourse shall be had for any claim based on or under this Agreement against any member, officer, employee or agent of the parties hereto subject to the Liability Cap. Any obligations with respect to any Claims or other liability of Seller, any rights of Buyer pursuant to this Agreement shall solely survive for a period of one (1) year (the "Survival Period"}. 9.6 Notices. All notices, certificates or other communications hereunder shall be personally delivered or delivered by United States registered or certified mail postage prepaid, return receipt requested, or by a nationally-recognized overnight delivery courier, addressed to the applicable address set forth below. Notice shall be deemed to have been given (a) on the delivery date indicated by the United States Postal Service on the return receipt or by the courier or on the date such delivery is refused or deemed "undeliverable," or (b) on the date of personal delivery. Either party may change its address for notices by providing written notice as specified herein; provided, however, that all addresses provided must be an actual street address located in the United States of America. If to Buyer: City of Carlsbad City Manager's Office ATTN: Curtis M. Jackson 1200 Carlsbad Village Drive P:01305551.6:07897 .008 Copy to: -15 - City of Carlsbad City Attorney's Office ATTN: Celia Brewer 1200 Carlsbad Village Drive Nov. 12, 2019 Item #6 Page 18 of 95 Carlsbad, CA 92008 If to Seller: 6125 Paseo Del Norte, LLC 6125 Paseo Del Norte, St. 210 Carlsbad, CA 92011 ATTN: Scott Leggett Carlsbad, CA 92008 9.7 Binding Effect. Without waiver of Section 9.2, this Agreement shall inure to the benefit of and shall be binding upon Seller, Buyer, and their respective successors and assigns. 9.8 Severability. If any one or more of the covenants, stipulations, promises, agreements or obligations provided in this Agreement on the part of Seller or Buyer to be performed should be determined by a court of competent jurisdiction to be contrary to law, then such covenant, stipulation, promise, agreement or obligation shall be deemed and construed to be severable from the remaining covenants, stipulations, promises, agreements and obligations herein contained and shall in no way affect the validity of the other provisions of this Agreement. 9.9 Headings. Any headings preceding the text of the several Articles and Sections hereof, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience or reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. 9.10 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 9.11 Seller and Buyer Representatives. Whenever under the provisions of this Agreement the approval of Seller or Buyer is required, or Seller or Buyer is required to take some action at the request of the other, such approval of such request may be given for Seller by an Authorized Officer/Representative of Seller and for Buyer by an Authorized Officer/Representative of Buyer, and any party hereto shall be authorized to rely upon any such approval or request. As used herein, the term "Authorized Officer", means (a) when used with respect to Seller, the President of Seller or any other officer, member, or manager of Seller which is designated by its President as an Authorized Officer, or (b) when used with respect to Buyer, the City Manager or any employee designated by the City Manager as an Authorized Officer. 9.12 Amendment. This Agreement may be amended, modified, or changed only in writing as mutually agreed to and duly executed by the parties hereto. 9.13 Counterpart. 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. 9.14 Time of the Essence. Time is of the essence in this Agreement and every provision contained in this Agreement. P:01305551.6:07897.008 -16 - Nov. 12, 2019 Item #6 Page 19 of 95 9.15 Integration. This Agreement, and all attachments and exhibits hereto constitute the entire agreement of the parties. There are no oral or parol agreements, which are not expressly set forth in the Agreement or the related documents being executed in connection with this Agreement. 9.16 Waivers. No waiver or breach of any provision shall be deemed a waiver of any other provision, and no waiver shall be valid unless it is in writing and executed by the waiving party. No extension of time for performance of any obligation or act shall be deemed an extension of time for any other obligation or act. 9.17 Attorney Fees, Litigation Costs and Related Matters. If any legal action or other proceeding, including arbitration or an action for declaratory relief, is brought to enforce this Agreement or because of a dispute, breach, default, or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs in addition to any other relief. Venue for enforcement of this Agreement shall be in the Superior Court of San Diego County, North County Branch. The parties agree that before either party commences any legal or equitable action, action for declaratory relief, suit, proceeding, or arbitration that the parties shall first submit the dispute to mediation through a mutually acceptable professional mediator in San Diego County, or if a mediator cannot be agreed upon by a mediator appointed by the Judicial Arbitration and Mediation Service in San Diego County. The cost of mediation shall be shared equally by the parties. 9.18 Exhibits. All exhibits referred to in this Agreement and attached hereto are made a part hereof and are incorporated herein by this reference. 9.19 Survival. All representations and warranties, all covenants and obligations to be performed at a time or times after close of Escrow, and all indemnities in this Agreement shall survive the close of Escrow and delivery and recordation of the Grant Deed subject to the Survival Period. ARTICLE 10 SPECIAL PROVISIONS 10.1 Temporary Easement. Buyer acknowledges that Buyer is purchasing the Property subject to a California Department of Transportation temporary construction easement (the "CalTrans Temporary Construction Easement") and that such occupancy of the Property is permitted and shall continue after the Close of Escrow. Buyer acknowledges that Buyer is purchasing the Property subject to the Restrictive Covenants, the Management Plan and the Restoration Plan and that such restrictions and obligations shall continue to affect the Property and Buyer as record owner of the Property after the Close of Escrow. 10.2 Right to possession of the Property, or the applicable parcel, shall transfer at Close of Escrow free of all tenancies but shall be subject to the CalTrans Temporary Construction Easement (as defined below), the Restrictive Covenant, the Management Plan and the Restoration Plan. Buyer acknowledges that Buyer's purchasing of the Property is subject to (a) the CalTrans Temporary Construction Easement, (b) the Permitted Exceptions and (c) obligations under the endowment agreement and the Endowment Fund. 10.3 Liquidated Damages. IF BUYER FAILS TO COMPLETE THE PURCHASE PROVIDED FOR IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER (AND SUCH FAILURE CONTINUES FOR MORE THAN FIVE BUSINESS DAYS AFTER WRITTEN NOTICE OF SUCH DEFAULT FROM SELLER TO BUYER), SELLER SHALL BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE PROPERTY TO BUYER P:0130S551.6:07897 .008 -17 - Nov. 12, 2019 Item #6 Page 20 of 95 AND MAY PROCEED AGAINST BUYER UPON ANY CLAIM OR REMEDY THAT SELLER MAY HAVE IN LAW OR EQUITY; PROVIDED, HOWEVER, THAT, BY INITIALING THIS SECTION 10.2, BUYER AND SELLER AGREE THAT IN THE EVENT OF DEFAULT BY BUYER, (A) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (B) AN AMOUNT EQUAL TO 3% OF THE PURCHASE PRICE (ANY EXTENSION PAYMENT MADE APPLYING TOWARDS SUCH AMOUNT}; (C} THE PAYMENT OF THE LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER; (D) SELLER MAY RETAIN THAT PAYMENT ON ACCOUNT OF PURCHASE PRICE FOR THE PROPERTY AS LIQUIDATED DAMAGES; AND (E) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. 11t/(; S [Initials of Buyer and Seller] 10.4 SELLER DEFAULT. BUYER AND SELLER ACKNOWLEDGE AND AGREE, PURSUANT TO THE TERMS, COVENANTS AND CONDITIONS OF THIS AGREEMENT, SELLER IS OBLIGATED TO PERFORM, AND IN THE EVENT ESCROW FAILS TO CLOSE BY REASON OF DEFAULT BY SELLER (SUBJECT TO ALL APPLICABLE NOTICE AND CURE PERIODS SET FORTH IN THIS AGREEMENT}, BUYER SHALL BE ENTITLED TO ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY, INCLUDING (WITHOUT LIMITATION) SPECIFIC PERFORMANCE OF SELLER EXCEPT ALL DAMAGES SHALL BE SUBJECT TO THE LIABILITY CAP. NOTWITHSTANDING SELLER'S OBLIGATION HEREIN, IN THE EVENT SELLER IS PREVENTED FROM CLOSING THE ESCROW PURSUANT TO THE HAPPENING OF AN EVENT, REQUIREMENT OR OTHER IMPEDIMENT BEYOND THE CONTROL OF SELLER (OTHER THAN A BUYER DEFAULT), BUYER SHALL BE ENTITLED TO THE RETURN OF ANY DEPOSITS AND ANY EXTENSION PAYMENTS MADE, AND ALL ACCRUED INTEREST, IF ANY, NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SELLER SHALL HAVE NO LIABILITY FOR ANY PUNITIVE DAMAGES, LOST PROFITS, SPECIAL DAMAGES OR CONSEQUENTIAL DAMAGES BASED ON ANY DEFAULT OR ALLEGED DEFAULT BY SELLER OR SELLER'S MEMBERS, MANAGERS, AFFILIATES OR REPRESENTATIVES. ---Z.,lf; S lr1nitials of Buyer and Seller] 10.5 Notice of Default. Neither party shall be entitled to pursue remedies for default under this Agreement unless such default has continued for more than five (5) days after delivery of written notice of such default to the defaulting party. [Signatures on following page] P:01305551.6:07897 .008 -18 - Nov. 12, 2019 Item #6 Page 21 of 95 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their respective names by their duly authorized officers as of the date first above written. Buyer: CITY OF CARLSBAD, Date: _ ____.__/ /'-1/~Ji~r,)_-___,, 2019 I Approved as to Form: City Attorney's Office , By: fl£ J IL½f, City Attorney Date: f cJ f ~j ':\ , 2019 Seller: 6125 Paseo Del Norte, LLC, a California limited liability company By: s ~ \J,. ~ \--<>::Jd Name:~ _ _o\\ J,___e.~~e -t\ L _ r' Title: ·r~MA->"-'·,~~ -~ By: Na me: [)'{ ~c.....v--, Title: ~ ~✓\v--.v.( Date: Si7.\'~ J.-/.J.2019 BUYER'S SIGNATURE(S) MUST BE NOTARIZED. NOTARY USE APPROPRIATE ACKNOWLEDGEMENT P:01305551.6:07897 .008 -19 - Nov. 12, 2019 Item #6 Page 22 of 95 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 20160014169 OFFICIAL RECORDS. DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'02" EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEA YING SAID NORTHEASTERLY LINE SOUTH 47°25'54" WEST 65.40 FEET; THENCE SOUTH 30°34'38" WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°44'26" EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13'4211 EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31" EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43'02" WEST 208.80 FEET TO THE POINT OF BEGINNING. P:01305551.6:07897 .008 -1- Nov. 12, 2019 Item #6 Page 23 of 95 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California S County of {.ff) Diego On _.....,Al ..... a~V.=tm~b~e~r __ a~a~+~h~-before me, ~&L....L.W.~---c ...... to. ..... 1 ___ 6-d~PJ-~~:Z~1~M~d~l.='tlr<_i.{'----'-Pv"--'/;=l,~1/ c=--- (insert name and tftle of thief' officer) personally appeared Matt H~11 Ma ()I who proved to me on the basis of satisfactory evidence be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature~ (Seal) HfCTOR GOM[Z Not.iry Public -Cailforn,., z z > Nov. 12, 2019 Item #6 Page 24 of 95 P:01305551.6:07897.008 EXHIBIT B SUBJECT PROPERTY - 2 - Nov. 12, 2019 Item #6 Page 25 of 95 RECORDING REQUESTED BY: DOC# 2020-0005735 111111111111 lllll 11111111111111111111111111111111111111111111111111111 . Stewart Title Guaranty Company 19000480888 Jan 06, 2020 04:59 PM OFFICIAL RECORDS Ernest J. Dronen burg, Jr., AND WHEN RECORDED MAIL TO: SAN DIEGO COUNTY RECORDER FEES: $36.00 (SB2 Atkins: $0.00) PCOR: YES PAGES: 5 City of Carlsbad/City Clerk 1200 Carlsbad Village Dr Carlsbad, CA 92008 GRANT DEED (Please fill in document title(s) on this line) 1 D Exempt from fee per GC27388.1 due to being recorded in connection with concurrent transfer that is subject to the imposition of documentary transfer tax, or, 2 D Exempt from fee per GC27388.1 due to being recorded in connection with a transfer that was subject to documentary transfer tax which was paid on document recorded previously on _______ (date*) as document number ___________ of Official Records, or, 3 ll] Exempt f~ per GC27388.1 due to t,he maximum fees b~i~g paid ~C ,d:>c,uments in thjs, transaction, · · A,. / 4 D Exempt from fee per GC27388.1 due to the maximum fees having been paid on documents in the transaction(s) recorded previously on __________ (date*) as document number(s) ______________________ of Official Records, or, 5 D Exempt from fee per GC27388.1, document transfers real property that is a residential dwelling to an owner-occupier, or, document is recorded in connection with concurrent transfer that is a residential dwelling to an owner-occupier, or, 6 □ 7 □ 8 □ 9 □ Rev 5/18 Exempt from fee per GC27388.1 due to it being recorded in connection with a transfer of real property that is a residential dwelling to an owner-occupier. The recorded document transferring the dwelling to the owner-occupier was recorded on __________ (date*) as document number(s) Exempt from fee per GC27388.1 due to being executed or recorded by the federal government in accordance with the Uniform Federal Lien Registration Act, by the state, or any county, municipality or other political subdivision of the state, or, Exempt from the fee per GC 27388.1 (a) (1); Not related to real property, or, Exempt from fee under GC27388.1 for the following reasons: THIS PAGE ADDED TO PROVIDE SENATEBILL2EXEMPTIONINFORMAIDN (Additional recordingfee applies) *The Prior Recording Reference must have been recorded within the last 60 days and is subject to review Nov. 12, 2019 Item #6 Page 26 of 95 RECORDING REQUESTED BY Stewart Title Guaranty Company -ei-1:y-:ef-C-arlsbm:l· 1 qooot..\ 808 g~ AND WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 AND MAIL TAX STATEMENTS TO: Exempt APN: 211-040-39-00 SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT DEED The undersigned declares that the documentary transfer tax is$ 0.00 and is [X] computed on the full value of the interest or property conveyed [TRANSFER TO GOVERNMENTAL ENTITY, R & T 11922]; or [ ] computed on the full value less the value of liens or encumbrances remaining thereon at the time of sale. [ ] Unincorporated area: [ x] City of Carlsbad For valuable consideration, receipt of which is hereby acknowledged, 6125 PASEO DEL NORTE, LLC, a California limited liability company ("Grantor"), hereby GRANTS, BARGAINS, SELLS and CONVEYS to CITY OF CARLSBAD, a California municipal corporation ("Grantee"), that certain real property situated in the City of Carlsbad, County of San Diego, State of California, and more particularly described on Exhibit A attached hereto. IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed as of /:2/ IC/ , 2019. GRANTOR: 6125 PASEO DEL NORTE, LLC, a California limited liability company ~ w.. \ -By: ~ ~ \ ~ Scott Leggett, Managing Member P:O 1327580.6:07897 .008 Nov. 12, 2019 Item #6 Page 27 of 95 ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss: ) I ce1iify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) P:O 1327580.6:07897.008 Nov. 12, 2019 Item #6 Page 28 of 95 CERTIFICATION FOR ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant Deed, dated November 20, 2019, from 6125 Paseo Del Norte, LLC to the City of Carlsbad, a Municipal Corporation, is hereby accepted by the City Council of the City of Carlsbad, California, a Municipal Corporation, pursuant to Resolution No. 2019-225 (Attachment A), adopted on November 20, 2019, and the grantee consents to the recordation thereof by its duly authorized officer. DATED: November 20, 2019 Hector Gomez Deputy City Clerk (SEAL) Nov. 12, 2019 Item #6 Page 29 of 95 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 20160014169 OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'02" EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEA YING SAID NORTHEASTERLY LINE SOUTH 47°25'54" WEST 65.40 FEET; THENCE SOUTH 30°34'38" WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°44'26" EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13'4211 EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31" EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43'02" WEST 208.80 FEET TO THE POINT OF BEGINNING. THE LAND IS CONVEYED SUBJECT TO THAT CERTAIN DECLARATION OF RESTRICTIVE COVENANTS DATED AUGUST 29, 2016, RECORDED AS DOCUMENT NUMBER 2016-0646521 IN THE OFFICIAL RECORDS OF SAN DIEGO COUNTY, CALIFORNIA AND THE RESTRICTIONS AND COVENANTS CREATED THEREIN WHICH REQUIRE THAT THE LAND: BE RETAINED IN PERPETUITY IN A NATURAL CONDITION; IS SUBJECT TO PERFORMANCE OF LONG-TERM MAINTENANCE, MANAGEMENT AND MONITORING AS DESCRIBED IN THE DECLARATION OF RESTRICTIVE COVENANTS; AND IS CONVEYED SUBJECT TO THE DEEMED ASSUMPTION OF ALL OBLIGATIONS UNDER THE DECLARATION OF RESTRICTIVE COVENANTS BY THE TRANSFEREE OF AN INTEREST IN THE LAND. P:01327580,6:07897 .008 Nov. 12, 2019 Item #6 Page 30 of 95 RECORDING REQUESTED BY: ~tewart Title Guaranty (.,u11 '""..: ... ~ ..-£teWftl4-'fi-t~:n.paR,Z- \ qooo4808 g g AND WHEN RECORDED MAIL TO: Solomon Ward Seidenwunn & Smith LLP 401 B Street, Suite 1200 San Diego, California 92101 Attention: Norman L. Smith, Esq. APN: 211-040-39 DOC# 2020-0005732 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Jan 06, 2020 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $98.00 (SB2 Atkins: $75.00) PAGES: 3 PARTIAL RECONVEYANCE WHEREAS, 6125 Paseo Del Norte, LLC, a California limited liability company, is the trustor, whose address is 6125 Paseo Del Norte, Ste. 210, Carlsbad, CA 92011, and Neuse, Incorporated, a North Carolina corporation, whose address is 100 East Tryon Road, Raleigh, NC 27603, is the trustee ('7rustee"), and First-Citizens _Bank & Trust Company, whose address is DAC 20, PO Box 26592, Raleigh, NC 27611-6592, is the beneficiary (the "Beneficiary"), under that certain Construction Deed of Trust, dated January 7, 2016 recorded in the Official Records of the County of San Diego, State of California (the "Official Records11 ), as Document No. 2016- 001365 l (the "Deed of Truse'). WHEREAS, a portion of the real property subject to the Deed of Trust had restrictive covenants imposed which provided for mitigation of certain impacts related to a construction project on adjacent parcels subject to the Deed of Trust and habitat preservation and monitoring requirements; WHEREAS, a Certificate of Compliance was recorded dividing Parcel 6 into two parcels; and WHEREAS, the Trustee has received from the Beneficiary a written request to reconvey a portion of the estate granted to the Trustee under said Deed of Trust, and the Trustee DOES HEREBY RECONVEY, in accordance with said request and the provision of the Deed of Trust, without warranty, to the person or persons legally entitled thereto, all right, title and interest heretofore acquired and now held by Trustee, in that certain portion of the real property which is the restricted parcel, located in the State of California, and now commonly described as follows: P:01332828.2:07897.008 Nov. 12, 2019 Item #6 Page 31 of 95 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016-0014169, OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW: COMMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'02 11 EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 47°25'5411 WEST 65.40 FEET; THENCE SOUTH 30°34'38 11 WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°44'26" EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13'4211 EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31 11 EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43'02" WEST 208.80 FEET TO THE POINT OF BEGINNING. APN: 211-040-39 Dated: \"l / 11 /-Z.,o\9 NEUSE, IN CORPORA TED, as Trustee P:01332828.2:07897.008 2 Nov. 12, 2019 Item #6 Page 32 of 95 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of C.oJf» YY\\ Ci\ County of SOY\ Q\ CtJ o ) ) On \)C,C.e\Y\'ceY: \] 11,0flbefore me, t:-\\1,~ C,QJ.-:be,V\ N...-\L\ v 'L. , Notary Public, personally appeared \leD-\--m . TW C5YY\ w , who proved to me on the \ basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. q~~,vttWALML~ (Signature) (Affix Seal) P:01332828.2:07897.008 3 Nov. 12, 2019 Item #6 Page 33 of 95 RECORDING REQUESTED BY: Stewart Title Guaranty Company --Stew ar t 'fiti:e-6om:pa:1ty- l q oootfg oS'8 g AND WHEN RECORDED MAIL TO: Solomon Ward Seidenwurm & Smith LLP 401 B Street, Suite 1200 San Diego, California 92101 Attention: Norman L. Smith, Esq. APN: 211-040-39 DOC# 2020-0005733 111111111111 lllll 1111111111111111111111111111111111111111 IIIII IIII IIII Jan 06, 2020 04:59 PM OFFICIAL RECORDS Ernest J. Dronen burg, Jr., SAN DIEGO COUNTY RECORDER FEES: $98.00 (SB2 Atkins: $75.00) PAGES: 3 PARTIAL RECONVEYANCE WHEREAS, 6125 Paseo Del Norte, LLC, a California limited liability company, is the trustor, whose address is 6125 Paseo Del Norte, Ste. 210, Carlsbad, CA 92011, and Neuse, Incorporated, a North Carolina corporation, whose address is 100 East Tryon Road, Raleigh, NC 27603, is the trustee ("Trustee"), and First-Citizens Bank & Trust Company, whose address is DAC 20, PO Box 26592, Raleigh, NC 27611-6592, is the beneficiary (the "Beneficiary"), under that certain Construction Deed of Trust, dated January 8, 2016 recorded in the Official Records of the County of San Diego, State of California (the "Official Records"), as Document No. 2016- 0013653 (the "Deed of Trust"). WHEREAS, a portion of the real property subject to the Deed of Trust had restrictive covenants imposed which provided for mitigation of certain impacts related to a construction project on adjacent parcels subject to the Deed of Trust and habitat preservation and monitoring requirements; WHEREAS, a Certificate of Compliance was recorded dividing Parcel 6 into two parcels; and WHEREAS, the Trustee has received from the Beneficiary a written request to reconvey a portion of the estate granted to the Trustee under said Deed of Trust, and the Trustee DOES HEREBY RECONVEY, in accordance with said request and the provision of the Deed of Trust, without warranty, to the person or persons legally entitled thereto, all right, title and interest heretofore acquired and now held by Trustee, in that certain portion of the real property which is the restricted parcel, located in the State of California, and now commonly described as follows: P :01332860.2:07897 .008 Nov. 12, 2019 Item #6 Page 34 of 95 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016-0014169, OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW: COMMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43102 11 EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 47°25'54" WEST 65.40 FEET; THENCE SOUTH 30°34138 11 WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°4412611 EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13 14211 EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31" EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43 102 11 WEST 208.80 FEET TO THE POINT OF BEGINNING. APN: 211-040-39 Dated: \1. \7. W\C\ NEUSE, INCORPORATED, as Trustee P:01332860.2:07897.008 2 Nov. 12, 2019 Item #6 Page 35 of 95 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of C o.\\:D)Y \11\.C\..,, County of So.n t>\e30 ) ) On beetm\xN: \7 11.o\'\ before me,€.\,-zc.we,\:k1 CA-\heviY\t-\J.-\v''L , Notary Public, personally appeared 'lent m -::IwtWDC,Lj , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. I~JJt\v~2~ cSiture) (Affix Seal) P:01332860.2:07897.008 3 Nov. 12, 2019 Item #6 Page 36 of 95 RECORDING REQUESTED BY: Stewart Title Guaranty Company .g46¥v"ft1"t,-:F-i-t-1-e-Getl'l:l3t1:rry- ( '1 D bD 4808g>g AND WHEN RECORDED MAIL TO: Solomon Ward Seidenwurm & Smith LLP 401 B Street, Suite 1200 San Diego, California 92101 Attention: Norman L. Smith, Esq. APN: 211-040-39 DOC# 2020-0005734 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Jan 06, 2020 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $98.00 (SB2 Atkins: $75.00) PAGES: 3 PARTIAL RECONVEYANCE WHEREAS, 6125 Paseo Del Norte, LLC, a California limited liability company, is the trustor, whose address is 6125 Paseo Del Norte, Ste. 210, Carlsbad, CA 92011, and Neuse, Incorporated, a North Carolina corporation, whose address is 100 East Tryon Road, Raleigh, NC 27603, is the trustee ("Trustee"), and First-Citizens Bank & Trust Company, whose address is DAC 20, PO Box 26592, Raleigh, NC 27611, is the beneficiary (the "Beneficiary"), under that certain Construction Deed of Trust, dated January 8, 2016 recorded in the Official Records of the County of San Diego, State of California (the "Official Records"), as Document No. 2016-001365 5 (the "Deed of Trust"). WHEREAS, a portion of the real property subject to the Deed of Trust had restrictive covenants imposed which provided for mitigation of certain impacts related to a construction project on adjacent parcels subject to the Deed of Trust and habitat preservation and monitoring requirements; WHEREAS, a Certificate of Compliance was recorded dividing Parcel 6 into two parcels; and WHEREAS, the Trustee has received from the Beneficiary a written request to reconvey a portion of the estate granted to the Trustee under said Deed of Trust, DOES HEREBY RECONVEY, in accordance with said request and the provision of the Deed of Trust, without warranty, to the person or persons legally entitled thereto, all right, title and interest heretofore acquired and now held by Trustee, in that portion of the real property described in said Deed of Trust, located in the State of California, and described as follows: P:01332865.2:07897.008 Nov. 12, 2019 Item #6 Page 37 of 95 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016-0014169, OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW: COMMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'02" EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 47°25'54" WEST 65.40 FEET; THENCE SOUTH 30°34'38" WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°44'26" EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13'42" EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31" EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43'02" WEST 208.80 FEET TO THE POINT OF BEGINNING. APN: 211-040-39 Dated: \ 1,. \1-?,D\9 NEUSE, INCORPORATED, as Trustee P:01332865.2:07897 ,008 2 Nov. 12, 2019 Item #6 Page 38 of 95 A notary public or other officer completing this cetiificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness , accuracy, or validity of that document. State of (.O...\\:tt)Y [\\IA. County of 50,.Y\ D\~o ) ) On \2eccm'ctv: \7 ,,'lp\O\ before me,€ H--zA.be-\b CA.~eY\V\l._,,,1£,,( v\L , Notary Public, personally appeared \l.evl.t ffi . 1 V'S:\) YY\ eL.\ , who proved to me on the \ basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Affix Seal) P:01332865,2:07897,008 3 Nov. 12, 2019 Item #6 Page 39 of 95 EXHIBITD FORM OF FIRPTA CERTIFICATE TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS To inform CITY OF CARLSBAD, a California municipal corporation ("Transferee"), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") will not be required upon the transfer of certain real property to Transferee by .__ ____________ _, ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor: 1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder). 2. Transferor's U.S. employer identification number is _____ _ 3. Transferor's office address is __________________ _ 4. Transferor is not a disregarded entity as defined in§ l.1445-2(b)(2)(iii). Transferor understands that this Certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalty of perjury I declare that I have examined this Certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor. Date: ______ __, 20 "Transferor" a ____________ _ By: Name: P:01305551.6:07897.008 -4- Nov. 12, 2019 Item #6 Page 40 of 95 EXHIBITE DECLARATION OF RESTRICTIVE COVENANTS P:01305551.6:07897 .008 -5 - Nov. 12, 2019 Item #6 Page 41 of 95 I I RECORDING REQUESTED BY AND) WHEN RECORDED MAIL TO: ) City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, California 92008-1989 ) ) ) ) ) 33D DOC# 2016-0646521 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Nov 28, 2016 11:41 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $141.00 PAGES: 43 Space above this line for Recorder's use Assessor's Parcel Number Project Number and Name 211-040-26 and portion of 211-040-25 CDP 15-l?A-6125 PaseoDel Norte DECLARATION OF RESTRICTIVE COVENANTS This DECLARATION OF RESTRICTIVE COVENANTS ("Restrictive Covenant") is made this 2-qtvlday of fuA0Ufil: , 20..l(P by 6125 Paseo Del Norte, LLC, a Limited Liability corporation (hereinafter "Declarant"). RECITALS A. Declarant is the developer of that certain real property in Carlsbad, County of san· Diego, State of California, commonly referred to as 6125 Paseo Del Norte -CDP 15-1 ?A (the "Project"). B. Declarant is the sole owner in fee simple of those portions of the Project located in Carlsbad, County of San Diego, State of California, and as further described in legal descriptions attached hereto as Exhibit "A-1 and A-2" and depicted on Exhibit "B" and attached hereto and incorporated by this reference (the "Restricted Property"), which consists of approximately 1.4 acres. C. This Restrictive Covenant provides mitigation for certain impacts of the Project, pursuant to requirements of Condition No. ~ of City of Carlsbad Planning Commission Resolution No. 1.W, dated May 4, 2016 for the Coastal Development Permit Amendment for the Project This Restrictive Covenant is intended and shall be deemed to satisfy such requirement as to the Restricted Property. The amount of coastal sage scrub to be preserved within the Restricted Property is .43 acres, with an additional 0.30 acre to be restored within the Restricted Property. Additional habitat to be preserved within the Restricted Property include approximately 0.4 acre of southern willow scrub, 0.2 acre of non-native vegetation, and 0.3 acre of disturbed habitat. · D. The Restricted Property possesses wildlife and habitat values of great importance to the People of the State of California and currently is and will remain in a Natural Condition as CA09/24/13 Nov. 12, 2019 Item #6 Page 42 of 95 Assessor's Parcel Number: 211-040-26 and portion of2l 1-240-25 Project Number and Name: CDP 15-17 A -6125 Pasco Del Norte defined herein and is intended to be preserved in its natural, scenic, open condition to maintain its ecological, historical, visual and educational values (collectively, "Conservation Values"). E. Declarant desires to preserve and protect the Restricted Property pursuant to the Paseo Del Norte Preserve Management Plan dated June, 2016 ("Management Plan"), an adaptive habitat management plan which may be revised from time to time and which is incorporated herein by this reference. F. Declarant desires to re-grade an existing graded slope that extends into the Restricted Property pursuant to Grading Plan number 486-5A ("Grading Plan") currently under review by the City. No work will occur under the Grading Plan until the City approves the plans and issues a grading permit to Declarant. G. Declarant desires to restore 0.3 acres of disturbed habitat and non-native vegetation graded pursuant to the Grading Plan to Diegan coastal sage scrub, pursuant to the Paseo Del Norte Project Restoration Plan dated June, 2016 ("Restoration Plan") which is incorporated herein by this reference. The majority of the restoration area is located within IWP Hardline and the entire restoration area is included in the Restricted Property. H. Declarant reserves the right to offer the Restricted Property as mitigation for other projects. Because the restoration and preservation actions being completed by the Declarant are not required as mitigation for specific biological impacts of the project, another entity could utilize the Restricted Property as mitigation for other projects, then also assuming the long-term management responsibilities for preservation. Use of the Restricted Property as mitigation for other projects may require recordation of an additional easement pursuant to Section 13 below or amending this Restrictive Covenant pursuant to Section 15 below. I. The United States Fish and Wildlife Service ("USFWS") has jurisdiction over the conservation, protection, restoration, enhancement and management of fish, wildlife and native plants and the habitats on which they depend under the Endangered Species Act, 16 U.S.C. Section 1531 et. seq., the Fish and Wildlife Coordination Act, 16 USC, Section 661-666c and other applicable federal laws. J. California Department of Fish and Wildlife ("CDFW'') has jurisdiction, pursuant to Fish and Game Code Section 1802, over the conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to Civil Code Section 815.3, Fish and Game Code Section 1348, and other provisions of California law. K. The City of Carlsbad ("City") is a municipal corporation with a Habitat Management Plan for Natural Communities in the City of Carlsbad ("HMP'') adopted by its City Council in November 2004, with the overall goal of contributing to regional biodiversity and the viability of rare, unique or sensitive biological resources throughout the City and the larger region while allowing public and private development to occur consistent with the Carlsbad General Plan and Growth Management Plan. 2 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 43 of 95 Assessor's Parcel Number: 211--040-26 and portion of211-240-25 Project Number and Name: CDP 15-17 A-6125 Paseo Del Norte COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS NOW THEREFORE, Declarant hereby declares the Restricted Property shall be held, transferred, conveyed, leased, occupied or otherwise disposed of and used subject to the following restrictive covenants, which shall run with the land and be binding on Declarant's heirs, successors in interest, administrators, assigns, lessees, or other occupiers and users of the Restricted Property or any portion of it. 1. Purpose. (a) The purpose of this Restrictive Covenant is to ensure the Restricted Property will be retained in perpetuity in a Natural Condition, defined below, and to prevent any use of the Restricted Property that will impair or interfere with the Conservation Values of the Restricted Property (the "Purpose"). Declarant intends that this Restrictive Covenant will confine the use of the Restricted Property to such activities, including without limitation, those involving the preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Restrictive Covenant. (b) The term ''Natural Condition," as referenced in the preceding paragraph and other portions of this Restrictive Covenant, shall mean the condition of the Restricted Property as it exists at the time this Restrictive Covenant is executed, as well as future enhancements or changes to the Restricted Property that occur directly as a result of the following activities: (I) Habitat creation or restoration, including implementation, maintenance and monitoring activities, required by the Restoration Plan and the City of Carlsbad Planning Commission Resolution No. 7167, dated May 4, 2016 for the Project. (2) In-perpetuity maintenance ("Long-Term Maintenance, Management, and Monitoring"), that occurs on the Restricted Property as described in the Management Plan and Section 6 herein; or (3) Grading allowed by the Grading Plan. (4) Activities described in Section 4 herein. (c) Declarant certifies to City, CDFW, and USFWS, that, to Declarant's actual knowledge, there are no structures or other man-made improvements existing on the Restricted Property. Declarant further certifies to City, CDFW, and USFWS, that, to Declarant's actual knowledge, there are no previously granted easements existing on the Restricted Property that interfere or conflict with the Purpose of this Restrictive Covenant as evidenced by the Title Report attached at Exhibit "C". The current Natural Condition is evidenced in part by the depiction of the Restricted Property attached on Exhibit "D", showing all relevant and plottable property lines, easements, dedications, improvements, boundaries and major, distinct natural features such as waters of the United States. Declarant has delivered further evidence of the Natural Condition to City, CDFW, and USFWS, (1) a color aerial photograph of the Restricted Property at an appropriate scale taken as close in time as possible to the date this Restrictive Covenant is executed; (2) an overlay of the Restricted Property boundaries on that aerial 3 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 44 of 95 Assessor's Parcel Number: 211-040-26 and portion of2I 1-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte photograph; and (3) on-site color photographs showing all natural features of the Restricted Property. ( d) If a controversy arises with respect to the Natural Condition of the Restricted Property, City, CDFW, and USFWS, shall not be foreclosed from utilizing any and all other relevant documents, surveys, photographs or other evidence or information to assist in the resolution of the controversy. ( e) The term "Biological Monitor" shall mean an independent third-party consultant with knowledge of upland resources in the San Diego County area and expertise in the field of biology. 2. Declarant's Duties. Declarant, its successors and assigns shall: (a) Undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities would be inconsistent with the Conservation Values and would violate the permitted uses of the Restricted Property set forth in this Restrictive Covenant; and (b) Post and maintain signage in or adjacent to the boundary areas of the Restricted Property as described in Section 4@; and (c) Comply with the terms of this Restrictive Covenant and cooperate with City, CDFW, and USFWS, in the protection of the Conservation Values; and ( d) Repair and restore damage to the Restrictive Property directly or indirectly caused by Declarant, Declarant's guests, representatives or agents and third parties; provided, however, Declarant, its successors or assigns shall not engage in any repair or restoration work in the Restricted Property that is not already allowed by the Restoration Plan and/or Management Plan without first consulting with City, CDFW, and USFWS, pursuant to Section 6; and ( e) Undertake construction, maintenance and monitoring of mitigated areas pursuant to the Restoration Plan until receipt of final approval of the success of the restoration from City, CDFW, and USFWS, (" City/CDFW/USFWS/ Final Approval"); and (t) Obtain any applicable governmental permits and approvals for any activity or use permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements; (g) Perform in-perpetuity Long-Term Maintenance, Management, and Monitoring set forth in Section 6 below; and (h) Perform an annual compliance inspection of the Restricted Property, prepare an inspection report and shall make reports available to City, CDFW, USFWS, and the City upon request. The annual report required by the Management Plan shall fulfill this requirement. 3. Prohibited Uses. 4 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 45 of 95 Assessor's Parcel Number: 211-040-26 and portion of211-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte Any activity on or use of the Restricted Property inconsistent with the Purpose of this Restrictive Covenant and not reserved as set forth in Section 4 hereof is prohibited. Without limiting the generality of the foregoing, the following uses by Declarant, and its respective guests, agents, assigns, employees, representatives, successors and third parties, are expressly prohibited, except as otherwise provided herein or unless specifically provided for in the Restoration Plan, Management Plan, and any easements and reservations of rights recorded in the chain of title to the Restricted Property at the time of this conveyance (as set forth in Exhibit C hereto): (a) Supplemental watering except for habitat enhancement activities described m Section4.(hl; (b) Use of herbicides, pesticides, rodenticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except weed abatement activities necessary to control or remove invasive, exotic plant species conducted by a herbicide applicator licensed to work within habitat preserve areas; ( c) Incompatible fire protection activities, except the fire prevention activities set forth in Section 4.ill; (d) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways and as necessary to restore native plant communities consistent with Section 4. ( e) Livestock grazing or other agricultural activity of any kind; (f) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except as allowed in the Management Plan; (g) Residential, commercial, retail, institutional, or industrial uses; (h) Any legal or de facto division, subdivision or portioning of the Restricted Property, except transfers in accordance with Section 17 below; (i) Construction, reconstruction or placement of any building or other improvement, billboard, or signs except signs permitted in Section 2.(hl and Section 4@ and drainage structures permitted by the Grading Plan; G) Depositing, dumping or accumulating soil, trash, ashes, refuse, waste, bio-solids or any other material; (k) Planting, introduction or dispersal of non-native or exotic plant or animal species; (I) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extraction of minerals, loam, gravel, soil, rock, sand or other material on or below the surface of the Restricted Property, except as permitted by the Grading Plan; 5 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 46 of 95 Assessor's Parcel Number: 21 J-040-26 and portion of211-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte (m) Altering the general topography of the Restricted Property, including but not limited to building of roads, trails, and flood control work, except as permitted by the Grading Plan; (n) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as necessary for (1) emergency fire protection as required by fire safety officials as set forth in Section 4ffi, (2) controlling invasive, exotic plants which threaten the integrity of the habitat, (3) preventing or treating disease, ( 4) completing the Restoration Plan and Management Plan, or (5) activities described in Section 2, Section 4 and Section 13; ( o) Manipulating, impounding or altering any natural watercourse, body of water or water circulation on the Restricted Property, except for the purposes of providing for habitat establishment, re-establishment, rehabilitation, and/or enhancement, and activities or uses detrimental to water quality, including but not limited to degradation or pollution of any surface or sub-surface waters; and (p) Fuel modification zones ( defined as a strip of mowed land or the planting of vegetation possessing low combustibility for purposes of fire suppression). 4. Declarant's Reserved Rights. Declarant reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Restricted Property, including the right to engage in or to permit or invite others to engage in all uses of the Restricted Property that are consistent with the Purpose of this Restrictive Covenant, including the following uses: (a) Access. Reasonable access through the Restricted Property to adjacent land over existing roads, or to perform obligations or other activities permitted by this Restrictive Covenant. In addition, police and other public safety organizations and their personnel may enter the Restricted Property to address any legitimate public health or safety matter. (b) Habitat Enhancement Activities. Enhancement of native plant communities, including the right to plant trees and shrubs of the same type as currently existing on the Restricted Property, so long as such activities do not harm the habitat types identified in the Permit. This may include habitat establishment, re-establishment, rehabilitation, and enhancement activities as mitigation for other projects. For purposes of preventing erosion and reestablishing native vegetation, the Declarant shall have the right to revegetate areas that may be damaged by the permitted activities under this Section 4, naturally occurring events or by the acts of persons wrongfully damaging the Natural Condition of the Restricted Property. Prior to any habitat enhancement activities that are not already allowed by the Restoration Plan and/or Management Plan, Declarant shall have its Biological Monitor submit detailed plans to City, CDFW, and USFWS, for review and approval. Habitat enhancement activities shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, permitting requirements, Restoration Plan, and Management Plan. 6 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 47 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte (c) Vegetation, Debris. and Exotic Species Removal. Removal or trimming of vegetation downed or damaged due to natural disaster, removal of man-made debris, removal of parasitic vegetation (as it relates to the health of the host plant) and removal of non-native or exotic plant or animal species. Vegetation, debris, and exotic plant species removal shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, permitting requirements, and Management Plan. (d) Erection and Maintenance of Informative Signage. Erection and maintenance of signage and other notification features saying ''Natural Area Open Space," "Protected Natural Area," or similar descriptions that inform persons of the nature and restrictions on the Restricted Property, at the locations shown on Figure 6 of the Management Plan. Prior to erection of such signage, the Declarant shall submit the proposed language and dimensions of such signs to City, CDFW, and USFWS, for review and approval. The erection and maintenance of informative signage shall not be in direct or potential conflict with the preservation of the Natural Condition of the Restricted Property or the Purpose of this Restrictive Covenant and shall be performed in compliance with all applicable laws, regulations, and permitting requirements. (e) No Interference with Development of Adjoining Property. Notwithstanding anything set forth herein to the contrary, nothing in this Restrictive Covenant is intended nor shall be applied to in any way limit Declarant or any of Declarant's successors and assigns from (I) constructing, placing, installing, and/or erecting any improvements upon the portions of the Project not constituting the Restricted Property, (2) installing and/or maintaining the subsurface infrastructure improvements, utility lines, landscaping (including irrigation and runoff), landscape mitigation, and/or similar non-structural improvements within the Restricted Property, and/or (3) developing adjoining property for any purposes, except as limited by any local, state or federal permit requirements for such development and provided that for all of the above clauses (1), (2), and (3) neither such activity nor any effect resulting from such activity amounts to a use of the Restricted Property, or has an impact upon the Restricted Property, that is prohibited by Section 3 above. (t) Fire Protection. The right, in an emergency situation only, to maintain firebreaks ( defined as a strip of plowed or cleared land made to check the spread of a fire), trim or remove brush, otherwise perform preventative measures required by the fire department to protect structures and other improvements from encroaching fire. All other brush management activities shall be limited to areas outside the Restricted Property. (g) Permitted Grading. The right, upon Grading Permit issuance by the City, to perform grading as shown on the Grading Plan. 5. Access. This Restrictive Covenant does not convey a general right of access to the public or a general right of access to the Restricted Property. In accordance with Section 4@, Declarant shall install signage at all likely points of entry informing persons of the nature and restrictions on the Restricted Property. This Restrictive Covenant will allow for access to the Restricted Property by City, CDFW, USFWS, City and third-party easement holders of record at the time of 7 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 48 of 95 Assessor's Parcel Number: 211-040-26 and ponion of211-240-25 Project Number and Name: CDP I 5-17 A -6125 Paseo Del Norte this conveyance at locations designated in easements and reservations of rights recorded in the chain of title to the Restricted Property at the time of this conveyance 6. Long-Term Maintenance, Management, and Monitoring. In addition to the other terms contained herein, Declarant, its successor or assign shall be responsible for the maintenance/repair of the Restricted Property in perpetuity. Long-term maintenance shall consist of the following activities: (a) implement its responsibilities under the Management Plan and any amendments thereto, and (b) annual restoration of the Restricted Property damaged by any activities prohibited by Section 3 herein. Declarant, its successors and assigns shall prepare a monitoring and maintenance report as specified in the Management Plan, and shall make reports available to City/CDFW/USFWS upon request. When activities are performed pursuant to subsection (b) above that are not already allowed by the Restoration Plan or Management Plan, Declarant shall retain a qualified Biological Monitor to prepare a Restoration Plan and to oversee/monitor such restoration activities. Declarant shall have its Biological Monitor submit a draft Restoration Plan to City/CDFW/USFWS for review and approval prior to its implementation. Upon completion of restoration as specified in the City/CDFW/USFWS-approved Restoration Plan, Declarant shall have its Biological Monitor prepare a detailed monitoring report, and Declarant shall make the report available to City/CDFW/USFWS within thirty (30) days of completion of restoration activities. Declarant, its successors or assigns and the Biological Monitor shall sign the monitoring report, and the report shall document the Biological Monitor's name and affiliation, dates Biological Monitor was present on-site, activities observed and their location, Biological Monitor's observations regarding the adequacy of restoration performance by the Declarant, its successors or assigns, or its contractor in accordance with the City/CDFW /USFWS-approved Restoration Plan, corrections recommended and implemented. 7. Endowment Declarant shall establish an endowment fund to be held in trust, invested and the interest disbursed therefrom to provide sufficient funds for the perpetual management, maintenance, and monitoring of the Property as required under this Restrictive Covenant. City, CDFW, and USFWS shall have the right to review and approve the terms of the endowment agreement, and shall be a third party beneficiary of that agreement with the right to review and approve any amendments. (a) Include the following principles of fiduciary duty in the endowment fund agreement: (1) The endowment holder shall have a :fiduciary duty to hold the endowment funds in trust for the Property. (2) The endowment holder shall not commingle the endowment funds with other funds. Funds may be pooled for investment management purposes only. (3) The endowment holder shall have a duty of loyalty and shall not use the endowment funds for its own personal benefit. 8 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 49 of 95 8. Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-l 7A-6l25 Paseo Del Norte (4) The endowment holder shall act as a prudent investor of the endowment funds. (5) The endowment holder shall not delegate the responsibility for managing the funds to a third party, but may delegate authority to invest the funds with Declarant's oversight. The endowment bolder shall act with prudence when delegating authority and in the selection of agents. (6) The endowment holder shall have annual audit of the endowment performed by a licensed CPA, and shall submit the auditor's written report to City, CDFW, and USFWS upon completion. (7) Endowment funds set aside for the management of the Property shall not be used to pay any damages for liability due to acts or omissions of the endowment holder or any other party. City, CDFW, and USFWS,Rights. To accomplish the Purpose of this Restrictive Covenant, Declarant hereby grants and conveys the following rights to City, CDFW, and USFWS (but without obligation of the City, CDFW, and USFWS): I (a) A non-exclusive easement on and over the Restricted Property to preserve and protect the Conservation Values of the Restricted Property; and (b) A non-exclusive easement on and over the Restricted Property to enter upon the Restricted Property to monitor Declarant's compliance with and to otherwise enforce the terms of this Restrictive Covenant; and ( c) A non-exclusive easement on and over the Restricted Property to prevent any activity on or use of the Restricted Property that is inconsistent with the Purpose of this Restrictive Covenant and to require the restoration of such areas or features of the Restricted Property that may be damaged by any act, failure to act, or any use that is inconsistent with the Purpose of this Restrictive Covenant; and ( d) All present and future development rights allocated, implied, reserved or inherent in the Property; such rights are hereby terminated and extinguished, and may not be used on or transferred to any portion of the Property, nor any other property adjacent or otherwise; and (e) The right to enforce by means, including, without limitation, injunctive relief, the terms and conditions of this Restrictive Covenant. 9. Enforcement. (a) Right to Enforce. Declarant, its successors and assigns, grant to City, CDFW, USFWS, Department of Justice, and the State Attorney General, as well as the City, a discretionary right to enforce these restrictive covenants in a judicial or administrative action against any person(s) or other entity(ies) violating or attempting to violate these restrictive covenants; provided, however, that no violation of these restrictive covenants shall result in a 9 CA 09/2412013 Nov. 12, 2019 Item #6 Page 50 of 95 Assessor's Parcel Number. 211-040-26 and portion of2l l-240-2S Project Number and Name: CDP 15-17A-6125 Paseo Del Norte forfeiture or reversion of title. The U.S. Department of Justice, CDFW, State Attorney General and City shall have the same rights, remedies and limitations under this Section 9. The rights under this Section are in addition to, and do not limit rights conferred in Section 8 above, the rights of enforcement against Declarant, its successor or assigns under other permits, or any rights of the various documents created thereunder or referred to therein. (b) Notice. (1) If City, CDFW, and USFWS determines Declarant is in violation of the terms of this Restrictive Covenant or that a violation is threatened, City/CDFW /USFWS may demand the cure of such violation. In such a case, City/CDFW/USFWS shall issue a written notice to Declarant (hereinafter "Notice of Violation") infonning Declarant of the violation and demanding cure of such violation. (2) Declarant shall cure the noticed violation within fifteen (15) days of receipt of said written notice from City, CDFW, and USFWS. If said cure reasonably requires more than fifteen (15) days, Declarant shall, within the fifteen (15) day period submit to City/CDFW/USFWS for review and approval a plan and time schedule to diligently complete a cure. Declarant shall complete such cure in accordance with the approved plan. If Declarant disputes the Notice of Volation, it shall issue a written notice of such dispute (hereinafter "Notice of Dispute") to the City/CDFW/USFWS within fifteen (15) days of receipt of written notice of violation. (3) If Declarant fails to cure the noticed violation(s) within the time period(s) described in Section 9{b)(2) above, or Section 9W below, City/CDFW /USFWS may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Declarant with the terms of this Restrictive Covenant. In such action, the City/CDFW /USFWS may (i) recover any damages to which they inay be entitled for violation by Declarant of the terms of this Restrictive Covenant, (ii) enjoin the violation, ex parte if necessary, by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies, or (iii) pursue other equitable relief, including, but not limited to, the restoration of the Restricted Property to the condition in which it existed prior to any such violation or injury. City/CDFW/USFWS may apply any damages recovered to the cost of undertaking any corrective action on the Restricted Property. (4) If Declarant provides City/CDFW/USFWS with a notice of dispute, as provided herein, City/CDFW /USFWS shall meet and confer with Declarant at a mutually agreeable place and time, not to exceed thirty (30) days from the date that City/CDFW/USFWS receives the notice of dispute. City/CDFW/USFWS shall consider all relevant information concerning the disputed violation provided by Declarant and shall determine whether a violation has in fact occurred and, if so, whether the notice of violation and demand for cure issued by City/CDFW /USFWS is appropriate in light of the violation. IO CA 09/24/2013 Nov. 12, 2019 Item #6 Page 51 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-17 A -6125 Paseo Del Norte (5) If, after reviewing Declarant's notice of dispute, conferring with Declarant, and considering all relevant infonnation related to the violation, City/CDFW /USFWS detennines that a violation has occurred, City/CDFW /USFWS shall give Declarant notice of such determination in writing. Upon receipt of such determination, Declarant shall have fifteen (15) days to cure the violation. If said cure reasonably requires more than fifteen (15) days, Declarant shall, within the fifteen (15) day period submit to City/CDFW /USFWS for review and approval a plan and time schedule to diligently complete a cure. Declarant shall complete such cure in accordance with the approved plan. (c) Immediate Action. If City/CDFW/USFWS, in its reasonable discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Restricted Property, City/CDFW/USFWS may immediately pursue all available remedies, including injunctive relief, available pursuant to both this Restrictive Covenant and state and federal law after giving Declarant at least twenty four (24) hours' written notice before pursuing such remedies. So long as such twenty four (24) hours' notice is given, City/CDFW/USFWS may immediately pursue all available remedies without waiting for the expiration of the time periods provided for cure or notice of dispute as described in Section 9.{hlill. The written notice pursuant to this paragraph may be transmitted to Declarant by facsimile. The rights of City/CDFW /USFWS under this paragraph apply equally to actual or threatened violations of the terms of this Restrictive Covenant. Declarant agrees that the remedies at law for City/CDFW /USFWS for any violation of the terms of this Restrictive Covenant are inadequate and that City/CDFW/USFWS shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which City/CDFW /USFWS may be entitled, including specific performance of the terms of this Restrictive Covenant, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. The remedies described in this Section 91£) shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. (d) Costs of Enforcement. Any costs incurred by City/CDFW/USFWS in enforcing the terms of this Restrictive Covenant against Declarant including, but not limited to, costs of suit and, any costs of restoration necessitated by Declarant's violation or negligence under the tenns of this Restrictive Covenant shall be borne by Declarant, subject to California Civil Code section 815. (e) Enforcement Discretion. Enforcement of the terms of this Restrictive Covenant shall be at the discretion of City/CDFW /USFWS. Any forbearance by City/CDFW /USFWS to exercise rights under this Restrictive Covenant in the event of any breach of any term of this Restrictive Covenant by Declarant shall not be deemed or construed to be a waiver by City/CDFW /USFWS of such term or of any subsequent breach of the same or any other term of this Restrictive Covenant or of any of the rights of City/CDFW /USFWS under this Restrictive Covenant. No delay or omission by City/CDFW /USFWS in the exercise of any right or remedy upon any breach by Declarant shall impair such right or remedy or be construed as a waiver. (f) Acts Beyond Declarant's Control. Nothing contained in this Restrictive Covenant shall be construed to entitle City/CDFW/USFWS to bring any action against Declarant for any injury to or change in the Restricted Property resulting from: 11 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 52 of 95 Assessor's Parcel Number: 211-040-26 and portion of211-240-25 Project Number and Name: CDP 15-17 A -6125 Paseo Del Norte (I) Any natural cause beyond Declarant's control, including without limitation, fire, flood, storm, and earth movement; or (2) Any prudent action taken by Declarant under emergency conditio~s to prevent, abate, or mitigate significant injury to persons and/or the Restricted Property resulting from such causes. 10. Costs and Liabilities. Declarant, or its successor or assign retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Restricted Property. Declarant agrees City, CDFW, and USFWS shall not have any duty or responsibility for the operation, upkeep, or maintenance of the Restricted Property, the monitoring of hazardous conditions thereon, or the protection of Declarant, the public or any third parties from risks relating to conditions on the Restricted Property. Declarant, its successor or assign remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Restrictive Covenant, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 11. Taxes. Declarant, its successors or assigns shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Restricted Property by competent authority, including any taxes imposed upon, or incurred as a result of, this Restrictive Covenant, and agrees to furnish City, CDFW, and USFWS with satisfactory evidence of payment upon request. 12. No Hazardous Materials Liability. (a) Declarant represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) in, on, under, about or affecting the Restricted Property. (b) Despite any contrary provision of this Restrictive Covenant, the parties do not intend this Restrictive Covenant to be, and this Restrictive Covenant shall not be, construed such that it creates in or gives City, CDFW, and USFWS any of the following: (I) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. Section 9607(aX3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or 12 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 53 of 95 Assessor's Parcel Number: 211-040-26 and portion of211-240-25 Project Number and Name: CDP 15-17 A -6125 Paseo Del Norte ( 4) The right to investigate and remediate any Hazardous Materials associated with the Restricted Property; or (5) Any control over Declarant's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Restricted Property. (c) The term "Hazardous Materials" includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and ( c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state or local laws, ordinances, mies, regulations or orders now in effect or enacted after the date of this Restrictive Covenant. (d) The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Declarant represents, warrants and covenants to City, CDFW, and USFWS that activities upon and use of the Restricted Property by Declarant, its agents, employees, invitees and contractors will comply with all Environmental Laws. 13. Additional Easements. Declarant shall not grant any additional easements, rights of way or other interests in the surface or subsurface of the Restricted Property ( other than a security interest that is subordinate to this Restrictive Covenant), or grant or otherwise abandon or relinquish any water rights relating to the Restricted Property, without first obtaining the written consent of City, CDFW, and USFWS. City, CDFW, and/or USFWS may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the Purpose of this Restrictive Covenant or will impair or interfere with the Conservation Values of the Restricted Property. This Section shall not prohibit transfer of a fee or leasehold interest in the Restricted Property that is subject to this Restrictive Covenant and complies with Section 17 below. Declarant, its successors and assigns shall record any additional easements or other interests in the Restricted Property approved by the City, CDFW, and USFWS in the official records of San Diego County, California and provide a copy of the recorded document to the City, CDFW, and USFWS. 14. Hold Harmless. Declarant shall hold harmless, protect and indemnify City and its, officials, directors, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each a "City Indemnified Party" and, collectively, "City's Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or judgments (each a "Claim" and, collectively, 13 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 54 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP I 5-17 A -6125 Paseo Del Norte "Claims"), arising from or in any way connected with: injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except that this indemnification shall be inapplicable to Declarant's Indemnified Parties with respect to any Claim due solely to the negligence of Declarant or any of its employees. If any action or proceeding is brought against any of Declarant's Indemnified Parties by reason of any such Claim, Declarant shall, at the election of and upon written notice from any of the Declarant Indemnified Parties defend such action or proceeding with counsel reasonably acceptable to the Declarant Indemnified Party, or reimburse the party for all charges incurred for services, including attorneys' fees, in defending the action or proceeding. 15. Amendment. Declarant may amend this Restrictive Covenant only after written concurrence by City, CDFW, and USFWS. Any such amendment shall be consistent with the Purpose of this Restrictive Covenant and shall not affect its perpetual duration. Declarant shall record any amendments to this Restrictive Covenant approved by City, CDFW, and USFWS in the official records of San Diego County, California, and shall provide a copy of the recorded document to City, CDFW, and USFWS. 16. Recordation. Declarant, its successor or assign shall promptly record this instrument in the official records of San Diego County, California, and provide a copy of the recorded document to City, CDFW, and USFWS. 17. Assignment and Subsequent Transfers. (a) Declarant agrees to incorporate the terms of this Restrictive Covenant in any deed or other legal instrument by which Declarant divests itself of any interest in all or a portion of the Restricted Property. Declarant, its successor or assign agrees to (i) incorporate by reference to the title of and the recording information for this Restrictive Covenant in any deed or other legal instrument by which each divests itself of any interest in all or a portion of the Restricted Property, including, without limitation, a leasehold interest and (ii) give actual notice to any such transferee or lessee of the existence of this Restrictive Covenant. Declarant, its successor or assign agrees to give written notice to City, CDFW, and USFWS of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Any subsequent transferee shall be deemed to have assumed the obligations of this Restrictive Covenant and to have accepted the restrictions contained herein. The failure ofDeclarant, its successor or assign to perform any act provided in this Section shall not impair the validity of this Restrictive Covenant or limit its enforceability in any way. (b) From and after the date of any transfer of all or any portion of the Restricted Property by Declarant and each transfer thereafter, (i) the transferee shall be deemed to have assumed all of the obligations of Declarant as to the portion transferred, as set forth in this Restrictive Covenant, (ii) the transferee shall be deemed to have accepted the restrictions contained herein as to the portion transferred, (iii) the transferor, as applicable, shall have no further obligations hereunder except for the obligations set forth above in this paragraph and 14 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 55 of 95 Assessor's Parcel Number: 211-040-26 and portion of2l 1-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte pursuant to Section 24, and (iv) all references to Declarant in this Restrictive Covenant shall thereafter be deemed to refer to such transferee. 18. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and be served personally or sent by first class mail, postage prepaid, addressed as follows: To Declarant: 6125 Paseo Del Norte, LLC 6183 Paseo Del Norte, Suite 180 Carlsbad, CA 92008 City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 California Dept. of Fish and Wildlife, Region 5 3883 Ruffin Road San Diego, CA 92123 US Fish and Wildlife Service 2177 Salk A venue, Suite 250 Carlsbad, CA 92008 FAX 760-431-5902 or to such other address as either party shall designate by written notice to the other. Notice shall be deemed effective upon delivery in the case of personal delivery or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 19. Controlling Law. The laws of the United States and the State of California shall govern the interpretation and performance of this Restrictive Covenant. 20. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Restrictive Covenant shall be liberally construed in favor of the deed to effect the purpose of this Restrictive Covenant and the policy and purpose California Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Restrictive Covenant that would render the provision valid shall be favored over any interpretation that would render it invalid. 21. Severability. IS CA 09/24/2013 Nov. 12, 2019 Item #6 Page 56 of 95 Assessor's Parcel Number: 211-040-26 and portion of2l l-240-2S Project Number and Name: CDP 15-17A-6125 Paseo Del Norte If a court of competent jurisdiction voids or invalidates on its face any provision of this Restrictive Covenant, such action shall not affect the remainder of this Restrictive Covenant. If a court of competent jurisdiction voids or invalidates the application of any provision of this Restrictive Covenant to a person or circwnstance, such action shall not affect the application of the provision to other persons or circumstances. 22. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Declarant's title in any respect. 23. Successors. The covenants, terms, conditions, and restrictions of this Restrictive Covenant shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Restricted Property. 24. Termination of Rights and Obligations. A party's rights and obligations under this Restrictive Covenant terminate upon transfer of the party's interest in the Restrictive Covenant or Restricted Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 25. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. 26. City, CDFW, USFWS, and Benefited Parties Except for Section 23, the terms of this Restrictive Covenant are for the benefit of the City, CDFW, USFWS, only and are not for the benefit of any other parties. IN WI1NESS WHEREOF Declarant has executed this Restrictive Covenant the day and year first above written. "Declarant" By: _____________ _ Name: L11:.""" E""t1' Title: Yl\~E" '9£)--t,.Jof-TE., l-'-c. Date: ___ __,,,~~--'~"'l..~--'~\e~---- By: __ _,,_Sod-..... ., ....,,,.&:,,1,_±:),.......,.,__ -~-""""",........,,,,"\..---:'l"''F=""'g,==::~~ 16 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 57 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte Name: ----------------- Title: _______________ _ Date: ________________ _ CITY OF CARLSBAD APPROVED AS TO FORM: CELIA A. BREWER, City Attorney B~ ~~ Assistant City Attorney 17 CA 09/24/2013 Nov. 12, 2019 Item #6 Page 58 of 95 Assessor's Parcel Number: 211-040-26 and portion of211-240-25 Project Number and Name: CDP 15-17A-6125 Pasco Del Norte EXHIBIT A-1 AND A-2 -LEGAL DESCRIPTIONS 18 CA02/04/13 Nov. 12, 2019 Item #6 Page 59 of 95 EXHIBIT "A-1" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS THAT PORTION OF PARCEL A OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016-0015564 OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL A OF AFOREMENTIONED CERTIFICATE OF COMPLIANCE; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS A AND B, SOUTH 42°43'02" EAST 204.44 FEET; TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY LINE OF SAID PARCEL A ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL A, SOUTH 47°25'54" WEST 65.40 FEET TO THE ANGLE POINT IN THE SOUTHEASTERLY LINE IN SAID PARCEL A; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL A, SOUTH 30°34'38" WEST 250.11 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL A; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCELS A, NORTH 30°44'26" WEST 33.91 FEET; THENCE LEAVING SAID SOUTHWESTERLY LINE OF SAID PARCEL A, NORTH 47°32'36" EAST 85.50 FEET; THENCE NORTH 39°39'03" EAST 10.58 FEET; THENCE NORTH 26°01 '48" EAST 25.13 FEET; THENCE NORTH 33°04'10" EAST 14.88 FEET; THENCE NORTH 47°17'54" EAST 8.28 FEET; THENCE NORTH 30°34'38" EAST 46.93 FEET; THENCE NORTH 43°05'44" WEST 5.90 FEET; THENCE NORTH 34°00'02" EAST 69.97 FEET; THENCE NORTH 10°11'48" EAST 9.36 FEET; THENCE NORTH 06°22'52" EAST 8.09 FEET; THENCE NORTH 01 °11 '40" EAST 8.00 FEET; THENCE NORTH 47°24'16" EAST 23.66 FEET TO A POINT OF INTERSECTION WITH THE NORTHEASTERLY BOUNDARY OF SAID PARCEL A; THENCE SOUTH 42°43'02" EAST 27.34 FEET ALONG THE NORTHEASTERLY BOUNDARY OF SAID PARCEL A TO THE TRUE POINT OF BEGINNING AREA EQUAL TO 3,472 SQUARE FEET MORE OR LESS Nov. 12, 2019 Item #6 Page 60 of 95 EXHIBIT "A-2" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016-0014169 OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL B OF SAID CERTIFICATE OF COMPLIANCE, SAID POINT BEING THE TRUE POINT OF BEGINNING. THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCEL B, SOUTH 42°43'02" EAST 208.80 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL B; -THENCE LEAVING SAID NORTHEASTERLY BOUNDARY, SOUTH 47°20'31" WEST 336.66 FEET ALONG THE EASTERLY BOUNDARY OF SAID PARCEL B TO THE MOST SOUTHEASTERLY CORNER OF SAID PARCEL B; THENCE ALONG THE SOUTHWESTERLY BOUNDARY OF SAID PARCEL B, NORTH 28°13'42°' WEST 60.15 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY BOUNDARY OF SAID PARCEL B; THENCE ALONG THE SOUTHWESTERLY BOUNDARY OF SAID PARCEL B, NORTH 30°44'26" WEST 80.24 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID PARCEL B; THENCE NORTH 30°34'38" EAST 250.11 FEET ALONG THE WESTERLY BOUNDARY OF SAID PARCEL B TO AN ANGLE POINT IN THE BOUNDARY OF SAID PARCEL B; THENCE NORTH 47°25'54" EAST 65.40 FEET, ALONG THE WESTERLY BOUNDARY OF SAID PARCEL B, TO THE TRUE POINT OF BEGINNING AREA EQUAL TO 57,125 SQUARE FEET MORE OR LESS ,/ ( Nov. 12, 2019 Item #6 Page 61 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP I 5-17 A -6125 Paseo Del Norte EXIIlBIT B -PLAT MAP 19 CA 02/04/13 Nov. 12, 2019 Item #6 Page 62 of 95 EXHIBIT 'B' -RESlfllCllVE COVENANT SCALE 1" = 60' I I PROPOSED FENCE LIN ~1 LIMIT OF COVENANT I I ! PARCEL A xl ~ _. C.O.C-2018-0015584 sli Iv, TOTAL AREA= 1.447 Ac ii~ ~ 5 :~~ .. ~ I ' l ; I 'PARCiLA ~ COVENANT AREA TOTAL AREA= 3,472 aq. ft. ~J2s----... -....J LINE TABLE "W tJD:lJ!""-ll 1--U_N_E.,_l£_N_G_1H__,,---B-'£_A_R_IN-G----1 ~--~ :~~7:~~~f~tit~NT ~- L1 27.34 N42"4J'o2·w r77l RESTRICTIVE COVENANT ...,._L2_+--2_3. __ .6_6-t~--N4....,7-="2.._4'.._t6 .... •E---i IL....L.Lj AREA PER PARCEL 8 LJ 8.00 N01"11'4 •r L4 B 09 N06°22.'52•E EASEMENT NOTE: • ELECTRIC EASEMENT TO SAN DIEGO GAS L5 9.36 N10"11'48•E & ELECTRIC RECORDED AUGUST B, 1977 L6 69.97 NJ4'00'02•E AS DOCUMENT NO. 77-355979. LOCATION L7 5.90 N4J"05'44•w OF EASEMENT CANNOT BE DETERMINED LB 46.9J NJO'J4'JB•E FROM RECORD INFORMATION, NOT PLOTTED L9 8.28 N4n7•54•£ HEREON. uo 14.ss NJJ"04'10·E ■ Hofman L11 25.13 N26"01'48•E L 58 • • Pllnlq and EnclihNll'hl ~ __,,.'-., 12 10. NJ9"J9 OJ E: L13 85.50 N47"J2'J6•E L14 JJ.91 NJ0°44'26•W Nov. 12, 2019 Item #6 Page 63 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-17A-6125 Paseo Del Norte EXHIBIT C -TITLE REPORT 20 CA 02/04/13 Nov. 12, 2019 Item #6 Page 64 of 95 ~Chicago Title Company 2365 Northside Drive, Suite 600, San Diego, CA 92108 Phone: (619) 521-3500 • Fax: (619) 521-3608 ORDER NO.: 12205932-993-SO2 BSD Buildings Inc. 8825 Rehco Rd., Suite A San Diego, CA 92121 ATTN: JeffBlair Email: jeff@bsdbuilders.com Ref: Issuing Policies of Chicago Title Insurance Company Escrow/Customer Phone: (619) 521-3500 Title Officer: Ken Cyr & Mark Franklin Title Officer Phone: (619) 521-3673 Title Officer Fax: (619) 521-3608 Title Officer Email: Cyr-Franklin@ctt.com PROPERTY: 6125 PASEO DEL NORTE, CARLSBAD, CA THIRD AMENDED PRELIMINARY REPORT In response to the application/or a policy of title insurance referenced herein, C/1icago Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a policy or policies of title insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any deject, lien or encumbrance not shown or referred to as an exception herein or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations or Conditions of said policy forms. The printed Exceptions and Exclusions from the coverage and Limitations on Covered Risks of said policy or policies are set forth in Attachment One. The policy to be issued may contain an arbitration clause. When the Amount of Insurance is less than that set forth in the arbitration clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. Limitations on Covered Risks applicable to the CLTA and ALTA Homeowner 's Policies of Title Insurance which establish a Deductible Amount and a Maximum Dollar Limit of Liability for certain coverages are also set forth in Attachment One. Copies of the policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or Commitment should be requested. The policy(s) of title insurance to be issued hereunder will be policy(s) of Chicago Title Insurance Company, a Nebraska Corporation. Please read tlte exceptions shown or referred to herein and tlte exceptions and exclusions set forth in Attacl,ment One of tltis report carefully. Tlte exceptions and exclusions are meant to provide you wit/, notice of matters w/1/c/1 are not covered under tl,e terms of tl,e title insurance policy and should be carefully considered. It is important to note tl,at this preliminary report is not a written representation as to tl,e condition of title and may not list al/ liens, defects and encumbrances affecting title to tlie land. Chicago Title Company By,Cr Authorized Signature CLTA Preliminary Report Fonn -Modified (I 1/17/06) . ---------·-------------------- ~ ~ By: Page I Nov. 12, 2019 Item #6 Page 65 of 95 '®Chicago Title Company 2365 Northside Drive, Suite 600, San Diego, CA 92108 Phone: (619) 521-3500 • Fax: (619) 521-3608 PRELIMINARY REPORT EFFECTIVE DATE: June 7, 2016 at 7:30 a.m. ORDER NO.: 12205932-993-SDl The form of policy or policies of title insurance contemplated by this report is: A Preliminary Report Only 1. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: A Fee 2. TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: 6125 PASEO DEL NORTE, LLC, a California limited liability company 3. THE LAND REFERRED TO IN THIS REPORT IS DESCRIBED AS FOLLOWS: See Exhibit A attached hereto and made a part hereof. CL TA Preliminary Report Fonn -Modified ( 11/17 /06) Page2 Nov. 12, 2019 Item #6 Page 66 of 95 PRELIMINARY REPORT YOUR REFERENCE: Chicago Title Company ORDER NO.: 12205932-993-SD2 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: APN: 211-040-25 & 26 PARCEL A OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016- 0015564 OFFICIAL RECORDS. DESCRIBED AS FOLLOWS: PARCEL 5 AND A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL 5; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'0211 EAST 204.44 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 47°25'54" WEST 65.40 FEET; THENCE SOUTH 30°34'38" WEST 250.11 FEET TO THE INTERSECTION WITH THE SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCELS 5 AND 6, NORTH 30°44'2611 WEST 284.03 FEET TO THE MOST WESTERLY CORNER OF SAID PARCEL 5; THENCE ALONG THE NORTHWESTERLY LINE OF SAID PARCEL 5 NORTH 47°40'3311 EAST 246.02 FEET TO THE POINT OF BEGINNING. PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED JANUARY 13, 2016 AS INSTRUMENT NO. 2016- 0014169 OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEING A PORTION OF PARCEL 6, AS SHOWN ON PARCEL MAP NO. 6022 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 8, 1977, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW: COMENCING AT THE MOST NORTHERLY CORNER OF PARCEL 5 OF SAID PARCEL MAP NO. 6022; THENCE ALONG THE NORTHEASTERLY LINE OF SAID PARCELS 5 AND 6 SOUTH 42°43'02" EAST 204.44 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEA VINO SAID NORTHEASTERLY LINE SOUTH 47°25'5411 WEST 65.40 FEET; THENCE SOUTH 30°34'3811 WEST 250.11 FEET TO THE INTERSECTION WITH TIIB SOUTHWESTERLY LINE OF SAID PARCEL 6; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 30°44'26" EAST 80.24 FEET; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 6, SOUTH 28°13'4i11 EAST 60.15 FEET TO THE MOST SOUTHERLY CORNER OF SAID PARCEL 6; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 6, NORTH 47°20'31" EAST 336.66 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL 6; , THENCE ALONG SAID NORTHEASTERLY LINE OF SAID PARCEL 6 NORTH 42°43'0211 WEST 208.80 FEET TO THE POINT OF BEGINNING. CLTA Preliminary Report Form-Modified (11/17/06) Page3 Nov. 12, 2019 Item #6 Page 67 of 95 PRELIMINARY REPORT YOUR REFERENCE: Chicago Title Company ORDER NO.: 12205932-993-SD2 EXCEPTIONS AT THE DATE HEREOF, ITEMS TO BE CONSIDERED AND EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS IN SAID POLICY FORM WOULD BE AS FOLLOWS: A. Property taxes, which are a lien not yet due and payable, including any assessments collected with taxes to be levied for the fiscal year 2016-2017. B. Property taxes, including any personal property taxes and any assessments collected with taxes, are as follows: Tax Identification No.: Fiscal Year: 1st Installment: 2nd Installment: Code Area: 2 II -040-25-00 2015-2016 $4,777.23, paid $4,777.23paid 9013 C. Property taxes, including any personal property taxes and any assessments collected with taxes, are as follows: Tax Identification No.: Fiscal Year: 1st Installment: 2nd Installment: Code Area: 21 1 -040-26-00 2015-2016 $363.60, paid $363.60, paid 9013 D. The lien of supplemental or escaped assessments of property taxes, if any, made pursuant to the provisions of Chapter 3.5 (commencing with Section 75) or Part 2, Chapter 3, Articles 3 and 4, respectively, of the Revenue and Taxation Code of the State of California as a result of the transfer of title to the vestee named in Schedule A or as a result of changes in ownership or new construction occurring prior to Date of Policy. 1. The ownership of said Land does not include rights of access to or from the street, highway, or freeway abutting said Land, such rights having been relinquished by the document, Recording Date: May 31, 1966 Recording No: 89678 of Official Records Affects: Along the southwesterly portion of said land adjacent to freeway 2. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: Affects: the City of Carlsbad drainage June 6, 1972 143227 A portion of the Land described herein 3. Easement(s) for the purpose(s) shown below and rights incidental thereto as delineated or as offered for dedication, on the map of said tract/plat; Purpose: Affects: 15' water easement and 55' drainage easement as shown on said map 4. Easement(s) for the purpose(s) shown below and rights incidental thereto, as granted in a document: Granted to: Purpose: Recording Date: Recording No: San Diego Gas and Electric Company public utilities, ingress, egress August 30, 1977 77-355979 of Official Records CLTA Preliminary Report Fonn-Modified (11/17/06) Page4 Nov. 12, 2019 Item #6 Page 68 of 95 PRELIMINARY REPORT YOUR REFERENCE: Affects: 5. Intentionally Omitted. EXCEPTIONS (Continued) A portion of the Land described herein. 6. Water rights, claims or title to water, whether or not disclosed by the public records. Chicago Title Company ORDER NO.: 12205932-993-8D2 7. Matters which may be disclosed by an inspection and/or by a correct ALT A/ ACSM Land Title Survey of said Land that is satisfactory to the Company, and/or by inquiry of the parties in possession thereof. 8. Any rights of the parties in possession of a portion of, or all of, said Land, which rights are not disclosed by the public records. The Company will require, for review, a full and complete copy of any unrecorded agreement, contract, license and/or lease, together with all supplements, assignments and amendments thereto, before issuing any policy of title insurance without excepting this item from coverage. The Company reserves the right to except additional items and/or make additional requirements after reviewing said documents. 9. A deed of trust to secure an indebtedness in the amount shown below, Amount: Dated: Trustor/Grantor Trustee: Beneficiary: Recording Date: Recording No: $8,300,000.00 January 7, 2016 6125 Paseo Del Norte LLC Neuse, Incorporated First-Citizens Bank & Trust Company January 12, 2016 2016-0013651 of Official Records 10. An assignment of all the moneys due, or to become due as rental, as additional security for the obligations secured by deed of trust shown above. Assigned to: Recording Date: Recording No: First-Citizens Bank & Trust Company January 12, 2016 2016-0013652 of Official Records 1 1. A deed of trust to secure an indebtedness in the amount shown below, Amount: Dated: Trustor/Grantor Trustee: Beneficiary: Recording Date: Recording No: $8,54,250.00 January 8, 2016 6125 Paseo Del Norte LLC Neuse, Incorporated First-Citizens Bank & Trust Company January 12, 2016 2016-0013653 of Official Records 12. An assignment of all the moneys due, or to become due as rental, as additional security for the obligations secured by deed of trust shown above Assigned to: Recording Date: Recording No: First-Citizens Bank & Trust Company January 12, 2016 2016-0013654 of Official Records 13. A deed of trust to secure an indebtedness in the amount shown below, CLTA Preliminary Report Form-Modified (11/17/06) Page 5 Nov. 12, 2019 Item #6 Page 69 of 95 PRELIMINARY REPORT YOUR REFERENCE: Amount: Dated: Trustor/Grantor Trustee: Beneficiary: Recording Date: Recording No: $533,708.00 January 8, 2016 EXCEPTIONS (Continued) 6125 Paseo Del Norte LLC Neuse, Incorporated First-Citizens Bank & Trust Company January 12, 2016 2016-0013655 of Official Records Chicago Title Company ORDER NO.: 12205932-993-SDZ 14. An assignment of all the moneys due, or to become due as rental, as additional security for the obligations secured by deed of trust shown above Assigned to: Recording Date: Recording No: First-Citizens Bank & Trust Company January 12, 2016 2016-0013 656 of Official Records PLEASE REFER TO THE "INFORMATIONAL NOTES" AND "REQUIREMENTS" SECTIONS WHICH FOLLOW FOR INFORMATION NECESSARY TO COMPLETE THIS TRANSACTION. END OF EXCEPTIONS CLTA Preliminary Report Form -Modified (11/17/06) Page6 ----------~--~-- Nov. 12, 2019 Item #6 Page 70 of 95 PRELIMINARY REPORT YOUR REFERENCE: REQUIREMENTS SECTION Chicago Title Company ORDER NO.: 12205932-993-SD2 1. The Company will require the following documents for review prior to the issuance of any title insurance predicated upon a conveyance or encumbrance from the entity named below: Limited Liability Company: 6125 Paseo del Norte, LLC, a California limited liability company a) A copy of its operating agreement, if any, and any and all amendments, supplements and/or modifications thereto, certified by the appropriate manager or member b) lfa domestic Limited Liability Company, a copy of its Articles of Organization and all amendments thereto with the appropriate filing stamps c) If the Limited Liability Company is member-managed, a full and complete current list of members certified by the appropriate manager or member d) If the Limited Liability Company was formed in a foreign jurisdiction, evidence, satisfactory to the Company, that it was validly formed, is in good standing and authorized to do business in the state of origin e) If less than all members, or managers, as appropriate, will be executing the closing documents, furnish evidence of the authority of those signing. The Company reserves the right to add additional items or make further requirements after review of the requested documentation. END OF REQUIREMENTS CL TA Preliminary Report Form -Modified ( I I /17 /06) Page7 Nov. 12, 2019 Item #6 Page 71 of 95 PRELIMINARY REPORT YOUR REFERENCE: INFORMATIONAL NOTES SECTION Chicago Title Company ORDER NO.: 12205932-993-SD2 l. Note: Property truces, including any personal property taxes and any assessments collected with taxes, are paid. For proration purposes the amounts were: Tax Identification No.: Fiscal Year: l st Installment: 2nd Installment: Exemption: Code Area: 211-040-25-00 2014-2015 $4,702.18 paid $4,702.18 paid None 09013 Note: Property taxes, including any personal property taxes and any assessments collected with taxes, are paid. For proration purposes the amounts were: Tax Identification No.: Fiscal Year: 1st Installment: 2nd Installment: Exemption: Code Area: 211-040-26-00 2014-2015 $362.85 paid $362.85 paid None 09013 2. None of the items shown in this report will cause the Company to decline to attach CLTA Endorsement Form 100 to an Extended Coverage Loan Policy, when issued. 3. The Company is not aware of any matters which would cause it to decline to attach CL TA Endorsement Form 116 indicating that there is located on said Land Commercial properties, known as 6125 Paseo Del Norte, located within the city of Carlsbad, California,, to an Extended Coverage Loan Policy. 4. Note: The policy of title insurance will include an arbitration provision. The Company or the insured may demand arbitration. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. Please ask your escrow or title officer for a sample copy of the policy to be issued if you wish to review the arbitration provisions and any other provisions pertaining to your Title Insurance coverage. END OF INFORMATIONAL NOTES Ken Cyr & Mark Franklin/gp CL TA Preliminary Report Form -Modified ( 11/17/06) · Page8 Nov. 12, 2019 Item #6 Page 72 of 95 FIDELITY NATIONAL FINANCIAL PRIVACY NOTICE At Fidelity National Financial, Inc. and its majority-owned subsidiary companies (collectively, "FNF'', "our" or "we"), we value the privacy of our customers. This Privacy Notice explains how we collect, use, and protect your information and explains the choices you have regarding that information. A summary of our privacy practices is below. We also encourage you to read the complete Privacy Notice following the summary. Types of Information Collected. You may provide us with certain personal information, like your contact information, social security number (SSN), driver's license, other government ID numbers, and/or financial information. We may also receive information from your Internet browser, computer and/or mobile device. Use of Your Information. We may use your information to provide products and services to you ( or someone on your behalf), to improve our products and services, and to communicate with you about our products and services. We do not give or sell your personal information to parties outside of FNF for their use to market their products or services to you. Choices With Your Information. Your decision to submit personal information is entirely up to you. You can opt-out of certain disclosures or use of your information or choose to not provide any personal information to us. Information From Children. We do not knowingly collect information from children under the age of 13, and our websites are not intended to attract children. How Information is Collected. We may collect personal information directly from you from applications, forms, or communications we receive from you, or from other sources on your behalf, in connection with our provision of products or services to you. We may also collect browsing information from your Internet browser, computer, mobile device or similar equipment. This browsing information is generic and reveals nothing personal about the user. Security Of Your Information. We utilize a combination of security technologies, procedures and safeguards to help protect your information from unauthorized access, use and/or disclosure. We communicate to our employees about the need to protect personal information. When We Share Information. We may disclose your information to third parties providing you products and services on our behalf, law enforcement agencies or governmental authorities, as required by law, and to parties with whom you authorize us to share your information. Privacy Outside the Website. We are not responsible for the privacy practices of third parties, even if our website links to those parties' websites. Access and Correction. If you desire to see the Do Not Track Disclosures. We do not recognize "do not information collected about you and/or correct any track" requests from Internet browsers and similar devices. inaccuracies, please contact us in the manner specified in this Privacy Notice. The California Online Privacy Protection Act. Certain FNF websites collect information on behalf of mortgage loan servicers. The mortgage loan servicer is responsible for taking action or making changes to any consumer information submitted through those websites. Your Consent To This Privacy Notice. By submitting information to us and using our websites, you are accepting and agreeing to the terms of this Privacy Notice. FNF Privacy Notice Effective: April 1, 2016 International Use. By providing us with your information, you consent to the transfer, processing and storage of such information outside your country of residence, as well as the fact that we will handle such information consistent with this Privacy Notice. Contact FNF. If you have questions or wish to contact us regarding this Privacy Notice, please use the contact information provided at the end of this Privacy Notice. Nov. 12, 2019 Item #6 Page 73 of 95 FIDELITY NATIONAL FINANCIAL, INC. PRIVACY NOTICE FNF respects and is committed to protecting your privacy. We pledge to talce reasonable steps to protect your Personal Information (as defined herein) and to ensure your information is used in compliance with this Privacy Notice. This Privacy Notice is only in effect for information collected and/or owned by or on behalf of FNF, including collection through any FNF website or online services offered by FNF (collectively, the "Website"), as well as any information collected offline (e.g., paper documents). The provision of this Privacy Notice to you does not create any express or implied relationship, nor create any express or implied duty or other obligation, between FNF and you. Types of Information Collected We may collect two types of information: Personal Information and Browsing Information. Personal Information. The types of personal information FNF collects may include, but are not limited to: contact information (e.g., name, address, phone number, email address); social security number (SSN), driver's license, and other government ID numbers; and financial account or loan information. Browsing Information. The types of browsing information FNF collects may include, but are not limited to: Internet Protocol (or IP) address or device ID/UDID, protocol and sequence information; browser language; browser type; domain name system requests; browsing history; number of clicks; hypertext transfer protocol headers; and application client and server banners. How Information is Collected In the course of our business, we may collect Personal Information about you from the following sources: applications or other forms we receive from you or your authorized representative, whether electronic or paper; communications to us from you or others; information about your transactions with, or services performed by, us, our affiliates or others; and information from consumer or other reporting agencies and public records that we either obtain directly from those entities, or from our affiliates or others. We may collect Browsing Information from you as follows: Browser Log Files. Our servers automatically log, collect and record certain Browsing Information about each visitor to the Website. The Browsing Information includes only generic information and reveals nothing personal about the user. Cookies. From time to time, FNF may send a "cookie" to your computer when you visit the Website. A cookie is a small piece of data that is sent to your Internet browser from a web server and stored on your computer's hard drive. When you visit the Website again, the cookie allows the Website to recognize your computer, with the goal of providing an optimized user experience. Cookies may store user preferences and other information. You can choose FNF Privacy Notice Effective: April I, 2016 not to accept cookies by changing the settings of your Internet browser. If you choose not to accept cookies, then some functions of the Website may not work as intended. Use of Collected Information Information collected by FNF is used for three main purposes: To provide products and services to you, or to one or more third party service providers who are performing services on your behalf or in connection with a transaction involving you; To improve our products and services; and To communicate with you and to inform you about FNF's products and services. When We Share Information We may share your Personal Information (excluding information we receive from consumer or other credit reporting agencies) and Browsing Information with certain individuals and companies, as permitted by law, without first obtaining your authorization. Such disclosures may include, without limitation, the following: to agents, representatives, or others to provide you with services or products you have requested, and to enable us to detect or prevent criminal activity, fraud, or material misrepresentation or nondisclosure; to third-party contractors or service providers who provide services or perform other functions on our behalf; to law enforcement or other governmental authority in connection with an investigation, or civil or criminal subpoenas or court orders; and/or to other parties authorized to receive the information in connection with services provided to you or a transaction involving you. We may disclose Personal Information and/or Browsing Information when required by law or in the good-faith belief that such disclosure is necessary to: comply with a legal process or applicable laws; enforce this Privacy Notice; investigate or respond to claims that any information provided by you violates the rights of a third party; or protect the rights, property or personal safety of FNF, its users or the public. We malce efforts to ensure third party contractors and service providers who provide services or perform functions on our behalf protect your information. We limit use of your information to the purposes for which the information was provided. We do not give or sell your information to third parties for their own direct marketing use. We reserve the right to transfer your Personal Information, Browsing Information, as well as any other information, in connection with the sale or other disposition of all or part of the FNF business and/or assets, or in the event of our bankruptcy, reorganization, insolvency, receivership or an assignment for the benefit of creditors. You expressly agree and consent to the use and/or transfer of this information in connection with any of the above-described proceedings. We cannot and will not be responsible for any breach of security by any third party or for any actions of any third party that receives any of the information that is disclosed to us. Choices With Your Information Whether you submit your information to FNF is entirely up to you. If you decide not to submit your information, FNF may not be able to provide certain products or services to you. You may choose to prevent FNF from using your information under certain circumstances ("opt Nov. 12, 2019 Item #6 Page 74 of 95 out"). You may opt out of receiving communications from us about our products and/or services. Security And Retention Oflnformation FNF is committed to protecting the information you share with us and utilizes a combination of security technologies, procedures and safeguards to help protect it from unauthorized access, use and/or disclosure. FNF trains its employees on privacy practices and on FNF's privacy and information security policies. FNF works hard to retain information related to you only as long as reasonably necessary for business and/or legal purposes. Information From Children The Website is meant for adults. The Website is not intended or designed to attract children under the age of thirteen (13). We do not collect Personal Information from any person that we know to be under the age of thirteen {13) without permission from a parent or guardian. Privacy Outside the Website The Website may contain links to other websites, including links to websites of third party service providers. FNF is not and cannot be responsible for the privacy practices or the content of any of those other websites. International Users Because FNF's headquarters is located in the United States, we may transfer your Personal Information and/or Browsing Information to the United States. By using our website and providing us with your Personal Information and/or Browsing Information, you understand and consent to the transfer, processing and storage of such information outside your country of residence, as well as the fact that we will handle such information consistent with this Privacy Notice. Do Not Track Disclosures Currently, our policy is that we do not recognize "do not track" requests from Internet browsers and similar devices. The California Online Privacy Protection Act For some websites which FNF or one of its companies owns, such as the Customer CarcNet ("CCN"), FNF is acting as a third party service provider to a mortgage loan servicer. In those instances, we may collect certain information on behalfofthat mortgage loan servicer, including: first and last name; property address; user name and password; loan number; social security number -masked upon entry; email address; security questions and answers; and FNF Privacy Notice Effective: April 1, 2016 IP address. The information you submit is then transferred to your mortgage loan servicer by way of CCN. The mortgage loan servicer is responsible for taking action or making changes to any consumer information submitted through this website. For example, if you believe that your payment or user information is incorrect, you must contact your mortgage loan servicer. CCN does not share consumer information with third parties, other than those with which the mortgage loan servicer has contracted to interface with the CCN application. All sections of this Privacy Notice apply to your interaction with CCN, except for the sections titled Choices with Your Information, and Access and Correction. If you have questions regarding the choices you have with regard to your personal information or how to access or correct your personal information, contact your mortgage loan servicer. Access and Correction To access your Personal Information in the possession of FNF and correct any inaccuracies, please contact us by email at privacy@fnf.com or by mail at: Fidelity National Financial, Inc. 60 I Riverside A venue Jacksonville, Florida 32204 Attn: Chief Privacy Officer Your Consent To This Privacy Notice By submitting Personal Information and/or Browsing Information to FNF, you consent to the collection and use of information by FNF in compliance with this Privacy Notice. We reserve the right to make changes to this Privacy Notice. If we change this Privacy Notice, we will post the revised version on the Website. ContactFNF Please send questions and/or comments related to this Privacy Notice by email at privacy@fnf.com or by mail at: Fidelity National Financial, Inc. 601 Riverside A venue Jacksonville, Florida 32204 Attn: Chief Privacy Officer Copyright el 2016. Fidelity National Financial, Inc. All Rights Reserved. EFFECTIVE AS OF APRIL 1, 2016 Nov. 12, 2019 Item #6 Page 75 of 95 Notice of Available Discounts Pursuant to Section 2355.3 in Title 10 of the California Code of Regulations Fidelity National Financial, Inc. and its subsidiaries ("FNF") must deliver a notice of each discount available under our current rate filing along with the delivery of escrow instructions, a preliminary report or commitment. Please be aware that the provision of this notice does not constitute a waiver of the consumer's right to be charged the field rate. As such, your transaction may not qualify for the below discounts. You are encouraged to discuss the applicability of one or more of the below discounts with a Company representative. These discounts are generally described below; consult the rate manual for a full description of the terms, conditions and requirements for each discount. These discounts only apply to transaction involving services rendered by the FNF Family of Companies. This notice only applies to transactions involving property improved with a one-to-four family residential dwelling. FNF Underwritten Title Company CTC -Chicago Title Company Available Discounts FNF Underwriter CTIC -Chicago Title Insurance Company CREDIT FOR PRELIMINARY REPORTS AND/OR COMMITMENTS ON SUBSEQUENT POLICIES (CTIC) Where no major change in the title has occurred since the issuance of the original report or commitment, the order may be reopened within 12 months and all or a portion of the charge previously paid for the report or commitment may be credited on a subsequent policy charge within the following time period from the date of the report. DISASTER LOANS (CTIC) The charge for a lender's Policy (Standard or Extended coverage) covering the financing or refinancing by an owner of record, within 24 months of the date of a declaration of a disaster area by the government of the United States or the State of California on any land located in said area, which was partially or totally destroyed in the disaster, will be 50% of the appropriate title insurance rate. CHURCHES OR CHARITABLE NON-PROFIT ORGANIZATIONS (CTIC) On properties used as a church or for charitable purposes within the scope of the normal activities of such entities, provided said charge is normally the church's obligation the charge for an owner's policy shall be 50% to 70% of the appropriate title insurance rate, depending on the type of coverage selected. The charge for a lender's policy shall be 40% to 50% of the appropriate title insurance rate, depending on the type of coverage selected. EMPLOYEE RA TE (CTC and CTIC) No charge shall be made to employees (including employees on approved retirement) of the Company or its underwritten, subsidiary title companies for policies or escrow services in connection with financing, refinancing, sale or purchase of the employees' bona fide home property. Waiver of such charges is authorized only in connection with those costs which the employee would be obligated to pay, by established custom, as a party to the transaction. Nov. 12, 2019 Item #6 Page 76 of 95 Attachment One (Revised 06-05-14) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 (04-08-14) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: I. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice ofa defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any talcing which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy. 4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the land is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any claim, which arises out of the transaction vesting in the insured the estate of interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws. EXCEPTIONS FROM COVERAGE-SCHEDULE B, PART I This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: I. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which arc not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. 6. Any lien or right to a lien for services, labor or material not shown by the public records. CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (12-02-13) ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE EXCLUSIONS In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from: I . Governmental police power, and the existence or violation of those portions of any law or government regulation concerning: a. building; b. zoning; © California Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers In good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Nov. 12, 2019 Item #6 Page 77 of 95 CL TA PRELIMINARY REPORT FORM, Attachment One (Revised 06-05-14) c. land use; d. improvements on the Land; e. land division; and f. environmental protection. This Exclusion does not limit the coverage described in Covered Risk 8.a., 14, 15, 16, 18, 19, 20, 23 or 27. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not limit the coverage described in Covered Risk 14 or 15. 3. The right to take the Land by condemning it. This Exclusion does not limit the coverage described in Covered Risk 17. 4. Risks: a. that are created, allowed, or agreed to by You, whether or not they are recorded in the Public Records; b. that are Known to You at the Policy Date, but not to Us, unless they are recorded in the Public Records at the Policy Date; c. that result in no loss to You; or d. that first occur after the Policy Date -this does not limit the coverage described in Covered Risk 7, 8.e., 25, 26, 27 or 28. 5. Failure to pay value for Your Title. 6. Lack of a right: a. to any land outside the area specifically described and referred to in paragraph 3 of Schedule A; and b. in streets, alleys, or waterways that touch the Land. This Exclusion does not limit the coverage described in Covered Risk 11 or 2 I. 7. The transfer of the Title to You is invalid as a preferential transfer or as a fraudulent transfer or conveyance under federal bankruptcy, state insolvency, or similar creditors' rights laws. 8. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake, or subsidence. 9. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances. LIMITATIONS ON COVERED RISKS Your insurance for the following Covered Risks is limited on the Owner's Coverage Statement as follows: • For Covered Risk 16, 18, 19, and 21 Your Deductible Amount and Our Maximum Dollar Limit of Liability shown in Schedule A. The deductible amounts and maximum dollar limits shown on Schedule A are as follows: Your Deductible Amount Our Maximum Dollar Limit of Liability Covered Risk 16: Covered Risk 18: Covered Risk 19: Covered Risk 21: 1.00% of Policy Amount Shown in Schedule A or $2,500.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $5,000.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $5,000.00 (whichever is less) 1.00% of Policy Amount Shown in Schedule A or $2,500.00 (whichever is less) 2006 ALTA LOAN POLICY (06-17-06) EXCLUSIONS FROM COVERAGE $10,000.00 $25,000.00 $25,000.00 $5,000.00 The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: I. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision ofland; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion I (a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion I (b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded i~ the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; © California Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Nov. 12, 2019 Item #6 Page 78 of 95 CLTA PRELIMINARY REPORT FORM, Attachment One (Revised 06-05-14) (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13 or 14); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Uncnforccability of the lien of the Insured Mortgage because of the inability or failure ofan Insured to comply with applicable doing- business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury or any consumer credit protection or truth-in-lending law. 6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights Jaws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date ofrecording of the Insured Mortgage in the Public Records. This Exclusion does not modify or limit the coverage provided under Covered Risk l l(b). The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE Except as provided in Schedule B -Part II, this policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees or expenses, that arise by reason of: PART I The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: l. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 6. Any lien or right to a lien for services, labor or material not shown by the Public Records. PART II In addition to the matters set forth in Part I of this Schedule, the Title is subject to the following matters, and the Company insures against loss or damage sustained in the event that they are not subordinate to the lien of the Insured Mortgage: 2006 ALTA OWNER'S POLICY (06-17-06) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: I. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision ofland; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1 ( a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion I (b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; ( c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. © California Land Title Association. All rights reserved. The use of this Form is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Nov. 12, 2019 Item #6 Page 79 of 95 CLTA PRELIMINARY REPORT FORM, Attachment One (Revised 06-05-14) 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees or expenses, that arise by reason of: The above policy form may be issued to afford either Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage in a Standard Coverage policy will also include the following Exceptions from Coverage: I. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 2. Any facts, rights, interests, or claims that are not shown in the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 3. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 4. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and that are not shown by the Public Records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 6. Any lien or right to a lien for services, labor or material not shown by the Public Records. 7. Variable exceptions such as taxes, easements, CC&R's, etc. shown here. ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (12-02-13) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: I. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land; (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion l(a) does not modify or limit the coverage provided under Covered Risk 5, 6, l3(c), 13(d), 14 or 16. (b) Any governmental police power. This Exclusion l(b) does not modify or limit the coverage provided under Covered Risk 5, 6, 13(c), 13(d), 14 or 16. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk II, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27 or 28); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage. 4. Unenforceability of the lien of the Insured Mortgage because of the inability or failure ofan Insured to comply with applicable doing- business laws of the state where the Land is situated. 5. Invalidity or unenforceability in whole or in part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, or any consumer credit protection or truth-in-lending law. This Exclusion does not modify or limit the coverage provided in Covered Risk 26. 6. Any claim of invalidity, unenforceability or lack of priority of the lien of the Insured Mortgage as to Advances or modifications made after the Insured has Knowledge that the vestee shown in Schedule A is no longer the owner of the estate or interest covered by this policy. This Exclusion does not modify or limit the coverage provided in Covered Risk I I. 7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching subsequent to Date of Policy. This Exclusion does not modify or limit the coverage provided in Covered Risk 1 l(b) or 25. 8. The failure of the residential structure, or any portion of it, to have been constructed before, on or after Date of Policy in accordance with applicable building codes. This Exclusion does not modify or limit the coverage provided in Covered Risk 5 or 6. © California Land Title Association. All rights reserved. The use of this Fann Is restricted to CL TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under llcense or express pennission from the California Land Title Association. Nov. 12, 2019 Item #6 Page 80 of 95 CLTA PRELIMINARY REPORT FORM, Attachment One (Revised 06-05-14) 9. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is (a) a fraudulent conveyance or fraudulent transfer, or (b) a preferential transfer for any reason not stated in Covered Risk 27(b) of this policy. 10. Contamination, explosion, fire, flooding, vibration, fracturing, earthquake, or subsidence. 11. Negligence by a person or an Entity exercising a right to extract or develop minerals, water, or any other substances. © california Land Title Association. All rights reserved. The use of this Form is restricted to Cl TA subscribers in good standing as of the date of use. All other uses are prohibited. Reprinted under license or express permission from the California Land Title Association. Nov. 12, 2019 Item #6 Page 81 of 95 Assessor's Parcel Number: 211-040-26 and portion of21 l-240-25 Project Number and Name: CDP 15-l7A-6125 Paseo Del Norte EXHIBIT D -EASEMENT PLOT EXHIBIT 21 CA02/04/13 Nov. 12, 2019 Item #6 Page 82 of 95 N 0 (0 UJ ..,. z N_ ...I ~,~ b UJ """In. 0 0 ~ 0:: z n. PASEO DEL NORTE N42°43'02"W 204.44' PROPOSED FENCE LINEj LIMIT OF COVENANT I PARCELA c.o.c -2016-0015564 Jfl. TOTAL AREA= 1.447 Ac ~5 X l X 35' X 70' CITY OF CARLSBAD DRAINAGE EASEMENT PER DOCUMENT NO. 143227 ' PARCltLA COVENANT AREA TOTAL AREA= 0.080 Ac KXXXXJ RESTRICTIVE COVENANT ~ AREA PER PARCEL A =....>.<...>~ V,~/l RESTRICTIVE COVENANT J _L_j AREA PER PARCEL B I EASEMENT NOTE: I ELECTRIC EASEMENT TO SAN DIEGO GAS & ELECTRIC RECORDED AUGUST 8, 1977 AS DOCUMENT NO. 77-355979. LOCA T10N OF EASEMENT CANNOT BE DETERMINED FROM RECORD INFORMA T10N, NOT PLOTTED ; HEREON. I Source of Encinas Creek: National Wetlands Inventory 2016 f Source of Property Lines and Easements: Hofinan Planning 2016 HELIX -_J ExhibitD PASEO DEL NORTE EnvinlnmenlalPlannlng----------------------------- ------------------·-----------------. ---- Nov. 12, 2019 Item #6 Page 83 of 95 / / CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. '--------------------------------------': STATE OF CALIFORl~IA COUNTY OF Sc:tf'\ \J '~ () } On 1s' · \1.,{4> beforeme, __ L_b_fl_\ __ ~_~_r<._T_l_l_~ ____ .Notary Public, Date (here insert name and title of the officer) personally appeared __ S_c_o_i_{ __ L_~____,,:}_:J~e..._+_t-+-l ------ _______ ______,('Y'lQ_r, a. 7 ; 0 5 (11-e ~ J;se.~,e ____ _ l I ! ' who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are ! subscribed to the within instrument and acknowledged to me that he/she/they executed the same ! in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instr:ument ; the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. , I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. sgna4\±4-t rto 1 ~~~~ LORI PARTITO l ~~---• ···: CommislionNo.2116465 ft ~-~(t_ ~ t ,"-' !'«)TARY PUBLIC'CALIFORNIA -"": v,.., · · 1 SAN li>IEGO COUNTY I. 1· ~/ M,COlllff!,E~E3Q.2019 1( (Seal) ____________ OPTIONAL _________ _ Description of Attached Document .bee la N..a't, -~ ~ /\4~cfi~ co~~ Title or Type of Document:..:.~ 8' / le . 'Number of Pages:___ ! Document Date: _______ Other: ________________ _ ---------------------------------Nov. 12, 2019 Item #6 Page 84 of 95 ASSIGNMENT AND ASSUMPTION OF RIGHTS AND OBLIGATIONS UNDER MAINTENANCE, MANAGEMENT AND RESTORATION AGREEMENTS AND PLANS, DECLARATION OF RESTRICTIVE COVENANTS, ENVIRONMENTAL SERVICES CONTRACTS, CALTRANS TEMPORARY CONSTRUCTION EASEMENT AND HOLD HARMLESS AGREEMENTS THIS ASSIGNMENT AND ASSUMPTION OF RIGHTS AND OBLIGATIONS UNDER MAINTENANCE, MANAGEMENT AND RESTORATION AGREEMENTS AND PLANS, DECLARATION OF RESTRICTIVE COVENANTS, ENVIRONMENTAL SERVICES CONTRACTS, CALTRANS TEMPORARY CONSTRUCTION EASEMENT AND HOLD HARMLESS AGREEMENTS (the "Assignment Agreement") is made this~ day of -Ian0 a<"::) , 2020 (the "Assignment Date") by and between 6125 PASEO DEL NORTE, LLC, a California limited liability company ("Assignor") and City of Carlsbad, a California municipal corporation ("Assignee"). In consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby assigns to Assignee, (1) all right, title and interest of Assignor as the record property owner under all land use, maintenance, management and restoration agreements and restrictive covenants (collectively, the "Property Maintenance, Management and Restriction Agreements") in effect for the Property, including that certain Caltrans Temporary Construction Easement and listed on Schedule A attached hereto and (2) all right, title and interest of Assignor under the Environmental Services Contracts (collectively, "Services Contracts") in effect relating to the mitigation, monitoring and restoration obligations affecting the Property, and listed on Schedule B attached hereto. Each capitalized term when used herein shall have the same respective meaning as is given such term in that certain Agreement for Purchase and Sale of Real Property between Assignor, as seller, and Assignee, as purchaser, dated as of November 20, 2019 (the "Purchase Agreement") with respect to the real property consisting of approximately 1.31 gross acres of land in the City of Carlsbad which is the subject of the Purchase Agreement (the "Property") unless expressly provided otherwise in this Assignment Agreement. Assignee hereby expressly assumes (u) all of the obligations imposed upon the record owner of the Property which first arise or accrue from and after the Assignment Date (including, without limitation, the obligation to provide maintenance, mitigation and monitoring in perpetuity for the Property, the obligation, if any, to create habitat, the obligation to restore, implement, maintain and perform monitoring activities on a perpetual basis all as required pursuant to the Paseo Del Norte Preserve Management Plan dated August 2016 with respect to the Property, the Restoration Plan dated August 2016 with respect to the Property, (v) all of the obligations imposed upon the owner of the Property under the Declaration of Restrictive Covenants dated August 29, 2016 recorded November 29, 2016 as Document Number 2016- 0646521 against the Property (the "Restrictive Covenants"), including all obligations thereunder to establish and fund an endowment fund as described therein, (w) any and all obligations imposed upon the record owner of the Property pursuant to the Caltrans Temporary Construction Easement, (x) all of the obligations imposed upon the owner of the Property in connection with the environmental service contracts which Assignee has entered into as required under mitigation and restoration plans affecting the Property, (y) all of the obligations imposed P:0 I 327584.5:07897.008 Nov. 12, 2019 Item #6 Page 85 of 95 upon the record owner of the Property (as to the Property only and not as to the other real property referenced therein), under the Hold Harmless Agreement -Drainage dated July 28, 2016 recorded September 2, 2016 as Document Number 2016-0460009 in the Official Records of San Diego County; and (z) all of the obligations imposed upon the record owner of the Property (as to the Property only and not as to the other real property referenced therein), under the Hold Harmless Agreement -Geologic Failure dated July 11, 2016 recorded September 2, 2016 as Document Number 2016-0460010 in the Official Records of San Diego County. Without limiting Assignee's obligations hereunder or under the Purchase Agreement, Assignee expressly acknowledges, and agrees to perform, its obligations to perform under (1) the said Management Plan, Restoration Plan and the Declaration of Restrictive Covenants relating to the perpetual maintenance of the Property in its natural condition and all mitigation, monitoring and restoration and any and all costs and fees associated therewith in accordance with the terms of Section 3.1 of the Purchase Agreement, and (2) the said environmental service contracts, as supplemented and amended to the Assignment Date. Assignee agrees to indemnify and hold harmless Assignor from any cost, liability, damage or expense, including reasonable attorneys' fees (collectively "Claims") arising from Assignee's failure to perform any of the foregoing obligations assumed by Assignee hereunder from and after the Assignment Date. As set forth in the Purchase Agreement, which is hereby incorporated by reference as if herein set out in full and except as set forth herein, the Property is being conveyed by Assignor and accepted by Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT, IT BEING THE INTENTION OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE CALIFORNIA LAW. In addition, the covenants, agreements, and limitations (including, but not limited to, the limitations provided in Article 3 and Section 4.5 of the Purchase Agreement) provided in the Purchase Agreement with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full. This Assignment and Assumption of Rights and Obligations Under Maintenance, Management and Restoration Agreements, Declaration Of Restrictive Covenants, Environmental Services Contracts, Caltrans Temporary Construction Easement and Hold Harmless Agreements shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Assignment and Assumption of Rights and Obligations Under Maintenance, Management and Restoration Agreements, Declaration Of Restrictive Covenants, Environmental Services Contracts, Caltrans Temporary Construction Easement and Hold Harmless Agreements P:0 1327584.5 :07897 .008 Nov. 12, 2019 Item #6 Page 86 of 95 may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. P:0 I 327584.5:07897.008 Nov. 12, 2019 Item #6 Page 87 of 95 IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Assumption of Rights and Obligations Under Maintenance, Management and Restoration Agreements, Declaration Of Restrictive Covenants, Environmental Services Contracts, Caltrans T~~~rary Cm1~rnction Easement and Hold Harmless Agreements to be executed as of this ~1day of d}(((fll,~ , 20/3_. ASSIGNOR: 6125 PASEO DEL NORTE, LLC, a California limited liability company By: Scott Leggett, Managing Member ASSIGNEE: CITY OF CARLSBAD, a California municipal corporation By: __________ _ Mayor Date; ___________ _ Approved as to form: City Attorney's Office By: __________ _ City Attorney Date: ------------- P:0 1327584.5 :07897.008 Nov. 12, 2019 Item #6 Page 88 of 95 IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Assumption of Rights and Obligations Under Maintenance, Management and Restoration Agreements, Declaration Of Restrictive Covenants, Environmental Services Contracts, Caltrans Temporary Construction Easement and Hold Harmless Agreements to be executed as of this -1L._ day of 7a IJL.ltl r \J I 20 ;J.) I ASSIGNOR: 6125 PASEO DEL NORTE, LLC, a California limited liability company By: Scott Leggett, Managing Member ASSIGNEE: CITY OF CARLSBAD, By:• ;4~7) 2ron Mayor Date; "Ian ' le t :lo~ C> Approved as to form: City Attorney's Office By:~~ City Attorney Date: \ )-{ """3:0 } I q t ' P:0 I 327584.5:07897.008 Nov. 12, 2019 Item #6 Page 89 of 95 SCHEDULE A LIST OF AGREEMENTS Declaration of Restrictive Covenants dated August 29, 2016, recorded November 28, 2016 as Document Number 2016-0646521 in the County of San Diego Official Records Paseo Del Norte Preserve Management Plan dated August, 2016 Restoration Plan dated August, 2016 Right of Way Contract with State of California Department of Transportation dated January 17, 2019 (the "Caltrans Temporary Construction Easement ") Hold Harmless Agreement -Drainage dated July 28, 2016 and recorded September 2, 2016 as Document Number 2016-0460009 (partial assignment as respects the Subject Property only and not the other real property referenced therein) Hold Harmless Agreement -Geologic Failure dated July 11, 2016 and recorded September 2, 2016 as Document Number 2016-0460010 (partial assignment as respects the Subject Property only and not the other real property referenced therein) P:0 l 327584.5:07897.008 Nov. 12, 2019 Item #6 Page 90 of 95 SCHEDULE B LIST OF ENVIRONMENTAL SERVICES CONTRACTS Letter Agreement dated April 24, 2017 by and between Helix Environmental Planning Construction Group and 6125 Paseo Del Norte, LLC for Habitat Restoration Services (Maintenance Slope) (executed May 16, 2017) 5 year slope restoration Letter Agreement dated March 24, 2017 by and between Helix Environmental Planning Construction Group to provide biological services and 6125 Paseo Del Norte, LLC (executed May 16, 2017) Letter Agreement dated November 9, 2017, with respect to contract executed May 16, 2017, by and between Helix Environmental Planning Construction Group and 6125 Paseo Del Norte, LLC (Jurisdictional delineation and management/meetings and agency liaison) (executed November 14, 2017) P:01327584.5:07897.008 Nov. 12, 2019 Item #6 Page 91 of 95 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. } personally appeared ~"""'-=--_,_,_ __ ,.._~-f-i'---=-=-=--------+---- who plov d to me on the basis of satisfacto evidence to be the person whose ~t executed the same i hi ~t~ authorized capacit~), and that by i me 1s a~ubscribed to thei!i · instrument and acknowledged to me that i 'ifet ·r sign_~~re~on the i rument the person~ or the entity upon behalf of which the perso~ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. al. (Notary Public Seal) INSTRUCTIONS FOR COMPLETING THIS FORM ADDITIONAL O PTI ONA L INF Q RMA Tl Q N 771is form complies with current California statutes regarding notary wording and, DESCRIPTION OF THE ATTACHED DOCUMENT if needed, should be completed and attached to the document. Acknowledgments from other states may be completed for documents being sent to that state so long ,J/YI J f!... as the wording does not require the California notary to violate California notary ./-,I...L.'4.1'4-LLLJ:-'4,,IJI.Z-_.:.,_-L,=:.4._,__'F-~V:.......:'I'----law. !lilt) ,., _j_ >/111 ( • State and County infonnation must be the State and County where the document 11.,,{ /(/fl~ signer(s) personally appeared before the notary public for acknowledgment. -.IL:':~Hl,r-',-f/----1..;..-l,,;LJ..a..J~-'---':,--'---• Date of notarization must be the date that the signer(s) personally appeared which CAPACITY CLAIMED BY THE SIGNER r;/ Individual (s) ./CJ"Corporate Officer (Title) D Partner(s) D Attorney-in-Fact □ Trustee(s) □ Other _________ _ 20·15 Version www.Nll!aryClasses.wrn 800-873-9865 must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural fonns by crossing off incorrect fonns (i.e. M/she/they;-is /ere) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording . • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area pennits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. ❖ Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. ❖ Indicate title or type ofattached document, number of pages and date. ❖ Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document with a staple. Nov. 12, 2019 Item #6 Page 92 of 95 CERTIFICATION FOR ACCEPTANCE This is to certify that the interest in real property conveyed by the Grant Deed, dated November 20, 2019, from 6125 Paseo Del Norte, LLC to the City of Carlsbad, a Municipal Corporation, is hereby accepted by the City Council of the City of Carlsbad, California, a Municipal Corporation, pursuant to Resolution No. 2019-225 (Attachment A), adopted on November 20, 2019, and the grantee consents to the recordation thereof by its duly authorized officer. DATED: November 20, 2019 Hector Gomez Deputy City Clerk (SEAL) \\\\1111111111//f/// ,,,,''c. CA b 111111. ~0·'" r(,.I ~.,,, ff'-.--·~~~¾ ~~ .. -~---~~ t'u(ffl~ ~ \~\ i \~; :,.A.! ~ ~ .... ~~ w,. ~ % ,,,. ·-...... .,..,\U~U• .. -··· .ff ~--~I .......... •·._\'\'I-~ ~,,,,,1 ... IFO~~,,,,,~ 11//111111111111111' Nov. 12, 2019 Item #6 Page 93 of 95 RESOLUTION NO. 2019-225 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE ALL APPROPRIATE ACQUISITION DOCUMENTS, AND FOR THE CITY CLERK TO EXECUTE THE CERTIFICATE OF ACCEPTANCE OF THE GRANT DEED FOR THE ACQUISITION OF REAL PROPERTY COMMONLY KNOWN AS THE PASEO DEL NORTE PRESERVE. WHEREAS, on March 14, 2017, the City Council approved the General Plan Lawsuit Settlement Agreement between the City of Carlsbad and North County Advocates (Settlement Agreement); and Attachment A WHEREAS, The Settlement Agreement directed the city to acquire property for open space preservation in perpetuity; and WHEREAS, on Nov. 13, 2018, the City Council authorized the Real Estate Manager to negotiate the acquisition of the Paseo Del Norte Preserve (Property) by Resolution No. 2018-191; and WHEREAS, the Property is 1.31 acres and is a located at 6125 Paseo del Norte, Carlsbad CA 92011 (APN 211-040-39-00) and is zoned Open Space (OS); and WHEREAS, on Jan. 15, 2019, the Real Estate Manager presented price and terms for the acquisition of the Property to City Council in Closed Session and was given direction by City Council to move forward with the acquisition; and WHEREAS, the city and Seller have agreed to the purchase price of $94,100; and WHEREAS, the acquisition of the Property does not qualify as a 'project' under the State CEQA Guidelines pursuant to Section 21065 and 15378 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore does not require environmental review. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Council hereby approves the acquisition of the property located at 6125 Paseo del Norte, Carlsbad, CA 92011, APN 211-040-39-00 from Paseo Del Norte, LLC in an amount of ninety-four thousand one hundred dollars ($94,1_00). 3. That the purchase and sale agreement, which is attached hereto as Attachment A, is approved as to form, and the fy'layor is hereby authorized and directed to execute the agreement. 4. That the city clerk is authorized to execute the Certificate of Acceptance of the Deed for the property, upon preparation by the escrow officer and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of November 2019, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Schumacher. NAYS: None. ABSENT: None. MATT HALL, Mayor ~ Hedtir 6,me21 -(or BARBARA ENGLESON, City Clerk (SEAL) ,,,11111111111,,,,,,,,l #'of CAJ:il.'I/¾ !~-... --··•·• .. ~ ==iji ~\'J';: ~ { ·c, ~tc~ lteJ-fJ,~1j,~ a~i~. ~4 79 ~ ~, ......... ~~ ~It. ,/Ft"ft' ,,,~ 11,,, ... ,:, ,,,, //j f I I)· i , ; I ( ~•, \ \ \ Nov. 12, 2019 Item #6 Page 94 of 95