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CT 93-10; Seapointe Resort; Tentative Map (CT)
OTY OF CARLSBAD j LAND USE REVIEW APPLICATION I*FOR PAGE 1 OF 2 1) APPLICATIONS APPLIED FOR: (CHECKBOXES) (FOR OBT- USE ONLY) Q Master Plan Q Specific Plan [j Precise Development Plan 20£ Tentative Tract Map [j Planned Development Permit D Non-Residential Planned Development £X Condominium Permit -Non-Res . G Special Use Permit O Redevelopment Permit [3 Tentative Parcel Map (H Administrative Variance E2 General Plan Amendment (XI Local Coastal Plan Amendment Q Site Development Plan S Zone Change 53 Conditional Use Permit O Hillside Development Permit g] Environmental Impact Assessment Q Variance Q Planned Industrial Permit L7J Coastal Development Permit Q Planning Commission Determination Q List any other applications not specificed •TOR DEPT USE 2) LOCATION OF PROJECT: ON THE SOUTH SIDE OF (NORTH. SOLTH EAST. WEST) PALOMKRR AIRPORT RD. (NAME OF STREET) BETWEEN PONTO DRIVE AND A.T. & S.F. RAILFOAD (NAME OF STREET)(NAME OF STREET) I 3) BRIEF LEGAL DESCRIPTION:PORTION OF LOTS 1 & 2 IN FRACTIONAL SECTION 20I ^-2. SOUT£ RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DI 4) ASSESSOR PARCEL NO(S). 5) LOCAL FACILITIES MANAGEMENT ZONE 8) EXISTING ZONING 11) PROPOSED NUMBER OF ft£Sffi>&N-Ty±.-t:j>iffS- timeshare Units 14) NUMBER OF EXISTING RESIDENTIAL UNITS STATR OF CAT.TFDRNTA 214-010-01 6) EXISTING GENERAL PLAN DESIGNATION 9) PROPOSED ZONING 12) PROPOSED NUMBER OF LOTS DESIGNATION 10) GROSS SITE ACREAGE 13) TYPE OF SUBDIVISION (RESIDENTIAL COMMERCLU INDUSTRIAL) IS) PROPOSED INDUSTRIAL OFFICE/SQUARE FOOTAGE -0-16) PROPOSED COMMERCIAL SQUARE FOOTAGE NOfTE; A PROPOSED PROJECT REQUIRING THAT MJUTPIE APPUCAltOKS BE Fflffi MUST BE SOTMTTED PWOR TO 3dO PJt A PROPOSSD PROJECT REQUIRING THAT ONLJf ONE AIWCATION BE BLED UUST BE SUBMITTED PRIOR TO 4:00 PM.FRM00016 8/'9f CITY OF CARLSBAD LAND USE REVIEW APPUCATION FORM PAGE 2 OF 2 17) PERCENTAGE OF PROPOSED PROJECT IN OPEN SPACE 18) PROPOSED SEWER USAGE IN EQUIVALENT DWELLING UNITS 19) PROPOSED INCREASE IN AVERAGE DAILY TRAFFIC 20) PROJECT NAME:Seapointe Resort 21) BRIEF DESCRIPTION OF PROJECT:THE PROPOSED PROJECT IS FOR THE DEVELOPMENT UF AUNIT TIMESHARE RESORT. THE PROPOSED PROJECT INCLUDES A GPA/LCPA QIlpQ TO TS AND A ZC FROM O TO C-T. 22) IN THE PROCESS OF REVIEWING THIS APPLICATION IT MAY BE NECESSARY FOR MEMBERS OF CITY STAFF. PLANNING COMMISSIONERS, DESIGN. REVIEW BOARD MEMBERS. OR CITY COUNCIL MEMBERS TO INSPECT AND ENTER THE PROPERWTHAT IS T^E/SUBJECT OF/THIS APPUCATION. I/WE CONSENT TO ENTRY FOR THIS PURPOSE fffit^ - ' ifWdf**-^ PETER DAN I ELS II SIGNATURE %/:„,, n,«^:^««t 23) OWNER 24) APPLICANT NAME (PRINT OR TYPE) BA PROPERTIES INC NAME (PRINT OR TYPE) CONTINENTAL COMMERCIAL CORPORATION MAILING ADDRESS H Sr -MAIUNG ADDRESS 5050 AVENIDA ENCINAS. STS. 2*00 CITY AND STA ZIP TELEPHONE I CERTIFY THAT 1 AM THE LEGAL OWNER AND THAT .ALL THE ABOVT INFORMATION IS TRUE AND CORRECT TO THEJBESOF CITY AND STATE ZIP CARLSBAtt. CA. 92008 TELEPHONE FEE COMPUTATION: APPLICATION TYPE FEE REQUIRED "77" • oo 5. 230.00 oc> TOTAL FEE REQUIRED DATE FEE PAID 1 CERTIFY THAT I AM THE LEGAL OWNER'i REPRESENTMTvl .»LVD THAT ALL THE ABOVE INFORMATION IS TRUE AND CORR£CT TO V BEST OF MY KNOWLEDGE. DATE STAMP APPLICATION RECEIVED RECEIVED BY: RECEIPT NO. PROJECT DESCRIFnON/EXPLANATION Seapointe Resort The Seapointe Resort project proposes the development of 86 timeshare units on a 8.02 acre site south of Palomar Airport Road, east of Carlsbad Boulevard and west of the Atchison & Topeka and Santa Fe Railway right-of-way. The proposed timeshare project will require the processing of a General Plan Amendment (GPA), a Local Coastal Plan Amendment (LCPA), a Zone Change (ZC), a Tentative Map (CT), a Condominium Permit (CP), a Hillside Development Permit (HDP), a Conditional Use Permit (CUP) and an Environmental Impact Assessment (EIA). The proposed GPA/LCPA is to change the current land use designation from O (Office) to TS (Travel Services commercial). The proposed ZC will be to change the existing zoning from O (Office) to C-T (Commercial-Tourist). These land use designation amendments and changes will occur on 2.35 acres of a 8.02 acre site. The remaining 5.17 acres will remain OS (Open Space). The timeshare units will range in size from 630 square feet to 858 square feet. The units will be comprised of one bedroom units all having kitchen facilities. The project will provide onsite recreational opportunities such as two swimming pools, a children's wading pool, a spa and a club house with a workout room. The maximum length of time that one family may occupy any one timeshare unit will be 28 days per year. Currently, a Zone Code Amendment (ZCA) is being processed that will facilitate the processing of this project. This ZCA is to provide additional clarification to the definitions of "Dwelling" and "Dwelling Unit" and provide a definition for a "Dwelling, Timeshare". The ZCA will also propose changes to the Conditional Uses section of the zoning ordinance to allow for timeshares in C-T and C-2 zones with a Conditional Use Permit (CUP). The ZCA is necessary in order to process the proposed project with a CUP. MANAGEMENT AND MAINTENANCE PLAN SEAPOINTE RESORT The property will be managed by a timeshare management company, Shell/Winners Circle Resort Management, Inc., an affiliate of the developer of Seapointe Resort, which will be responsible for all facets of the operation including: Housekeeping - maids' salaries, laundry, cleaning supplies, etc.; Maintenance - covers both scheduled routing upkeep and special repairs needed for building, amenities and grounds; Utilities - water, sewer, electricity, etc. for units and common areas; Front Desk - salaries for front desk, reception, PBX operators, activities department, etc.; Insurance - including fire & casualty, flood, earthquake and liability; Reserves - a reserve fund is established to provide for the long-term replacement of furnishings, fixtures and building rehab; and Management - includes a management fee based on a percentage of the operating expenses excluding reserves. Management will be performed under a written management contract between Shell/Winners Circle Resort Management, Inc. and the timeshare homeowners association. The California Department of Real Estate requires that all timeshare homeowners associations enter into management contracts with a recognized management company prior to the Department's issuance of the Public Report. The management contract has an initial term of three years, with automatic one-year renewal terms. (This is the same arrangement as at the seven other southern California timeshare projects managed by Shell/Winners Circle Resort Management.) The resort is operated on the same basis as a hotel, but without the seasonal layoffs often necessary in a hotel due to seasonal occupancy variations. The resort will have a 24-hour front desk. Maid service will include a major weekly cleaning, a light cleaning mid-week, and daily trash and towel service. A maintenance staff of 1-2 people will be employed on-site. Most maintenance functions will be performed by the on-site staff. Other functions are performed by Shell/Winners Circle staff from the other resorts it manages, who specialize in other facets of the operation such as landscaping or locksmiths. Other facets of the operation such as pool maintenance and pest control are performed by outside contractors. The cost of needed repairs and refurbishment is paid through the annual homeowners association assessment on all timeshare owners. The homeowners association adopts an annual budget of the cost of operating the resort including all salaries, benefits, supplies, contract costs, C:\WP\SP\MGMTMANT.PLN 1 utilities and insurance. The homeowners association levies an assessment annually on all timeshare owners, pursuant to the project's recorded covenants, conditions and restrictions. The assessment averages $350 per unit week per year at Shell/Winners Circle's seven other resorts. In addition, the homeowners association assesses a reserve for replacement for capital expenses such as furniture, roof and appliances. The replacement reserve assessment is approximately $50 per unit week per year(which equates to approximately $2500 per unit per year). This preserves the quality of the resort over time and provides for major future replacement items without special assessment. Homeowners association budgets and reserves are closely monitored and audited by the Department of Real Estate prior to its initial issuance or subsequent renewal of a Public Report. C:\WP\SP\MGMTMANT.PLN PLEASE NOTE: Time limits on the processing of discretionary projects established by state law do not start until a project application is deemed complete by the City. The City has 30 calendar days from the date of application submittal to determine whether an application is complete or incomplete. Within 30 days of submittal of this application you will receive a 1/tter stating whether this application is complete or incomplete. If it is incomplete, the letter will state what is needed to make this af processing period wi Applicant Signature:' Staff Signature: Date: lication compl rt upon When the application is complete, the ate of the completion letter. To be stapled with receipt to application Copy for file Hofman Planning Associates Corporate Office: 2386 Faraday Ave., Suite 120 Carlsbad, CA 92008 Tel: 619.438.1465 Fax: 619.438.2443 Regional Office: PO Box 208 Laclede, ID 83841 Tel: 1.800.433.4460 Fax: 1.800.322.4277 Date:August 20. 1993 Project: Seapointe Resort Delivered By: HPA For Your: Review Attention: Brian Hunter Message: Brian: The following items are submitted for the processing of the Seapointe Resort project. 8 1/2" 8 1/2' 8 1/2" Land Use Review Application Disclosure Statement Letter Regarding Fees Three Checks - Total = $23,985.00 Public Facilities Agreement - 2 Copies: 1 Notarized Original and 1 Copy Project Description/Explanation Local Coastal Plan Amendment Discussion Environmental Impact Assessment - Part 1 8 1/2" x 11" Location Map 8 1/2" x 11" Existing General Plan Exhibit x 11" Proposed General Plan Exhibit x 11" Existing Local Coastal Plan Exhibit x 11" Proposed Local Coastal Plan Exhibit 8 1/2" x 11" Existing Zoning Exhibit 8 1/2" x 11" Proposed Zoning Exhibit Preliminary Title Report - 3 Copies Preliminary Hydrology Study - 2 Copies Preliminary Soils Report - 2 Copies Biological Resources Technical Report - 1 Copy Tentative Map - 10 Copies Constraints Map - 10 Copies Site Plan, Elevations, Floor Plans - 10 Copies 8 1/2" x 11" Site Plan, Elevations, Floor Plans - 1 Copy Landscape Plans - 10 Copies Fire Access Exhibit - 10 Copies Hillside Development Permit - 5 Copies Photos Of Site Colored Rendering Of Elevations From: " 1 - M* '••W^x* * CW '**»&„ <- » -- ac,- - '. I- ^ v ^ v/b ' <\ *^- \L3jn.,1*** @S^%»•• ^.s« *-»• • v ^ >j-ov^.-^r £ <•«• »' V _r^i-=-: i <. .--. - >* ;~ C i /*-*3e v h ^Afi ^r^ 5 >X'\'\w" V^4 :-:« iV ir^ii w^J rT.'. ,*-^/4. AJ^Jt'/• > 'P-5 £J%.W--^^J% » *?->/*fcS-"«-t^*=t« /2 <fe? J^?jM£*&J?*i_ *Bb ts« P J/-""I^^—•:—IT ^-^n-m s • '%. '-.•--: m jt^ ^y5& s ^•JK. -<»- i^.> ^^^ mdC1.^i %>^ >»-*'*i ^f®.| •I i<.-r-I ^ r^ £**^4 •:-:v c rfC |T2>,fe- '%*. fc f ^%*>-r^e" x r-a Jrl -ft .'>. Hi -v I. ,'\-b:^ ,;;«: •&3 ^<r "W- ^?rf%^*rf'7^^V^l^ >: ^V^'r '"^'"^^•-- -'^-'r'- %' ~." "'•"•'''>*^V' '"'^/"f/, •"-;'*'['-.;'n, \'*y,'•:- - ' - ' '/t ^ / ( u»>*41 * #>;.< 'v^"' ( i / ! i \ •' I /'/^ / / —r'' />• . •.-!// -^ »/<: ' '':* M^,(f %"r. ,/ cBASE ** PROJECT PROCESSING ** 02/14/96 Project No; A9400222 09:41 Type: AUTOPROJ AUTOMATIC PROJECT Status Applied Completed AUTO 021494 Apr/Issue Expired •• •* Dates: Job Title; 5 MODELS. PLAN 1, SANDPIPERValuation; Descr; WARMINGTON HOMES,PA-25. CT-90-37,PHASE 4 Type Const; VN Address: 7009 Street: WILDROSE TR Lot#; 13 Suite; Parcel: 2157001500 Owner; WARMINGTON HOMES Occupancy; Referencefl; I of Bldqs: # of Units; No district keyword Applicant; BAUSBACK, KURT Telephone; 619 931-1461 Address; 3090 PULLMAN STREET COSTA MESA. CA. 92626 Insp Area; Val. By; MDP CONDS; NO INSP; NO APPR; NO COMM; NO MULTA; NO $ BAL; NO Develop; Entered: 02/14/94 By: COUNTER FINAL BUILDING INSPECTION DEPT: BUILDING ENGINEERING FIRE QHHHHi .^ U/M PLAN CHECK#: CB950468 PERMIT#: CB950468 PROJECT NAME: 66386 SF PARKING AND 67466 SF RESIDENCES -7/27/95 FOUND. ONLY ADDRESS: CONTACT PERSON/PHONE#: MW/CLAY/930-8955 SEWER DIST: WATER DIST: WATER DATE: 09/11/96 PERMIT TYPE: HOTEL INSPECTED , . BY: <^/VlrM^r IXWV* INSPECTED BY: INSPECTED BY: DATE Ite*/^ INSPECTED: <^/V I DATE INSPECTED: DATE INSPECTED: ^\Lf. APPROVED I/ APPROVED APPROVED / DISAPPROVED DISAPPROVED DISAPPROVED COMMENTS: w t&'c ILIFORNIA 92006 Hofman Planning Associates Planning Project Management Fiscal Analysis August 19, 1993 Brian Hunter Auu £, u TJJJ Planning Department f V C 2075 Las Palmas Drive t Carlsbad, CA. 92009 SUBJECT: Processing Fees For The Seapointe Resort Project Dear Brian: The following is a breakdown of the required fees for the processing of the Seapointe Resort project. These fees will be paid at the time of the submittal of the project to the City. Application Name Fee General Plan Amendment (GPA) $ 1,200.00 Local Coastal Plan Amendment (LCPA) $ 5,531.00 Zone Change (ZC) $ 280.00 Non-Residential Tentative Map (CT) $ 2,800.00 Non-Residential Condominium Permit (CP) $10,504.00 Hillside Development Permit (HDP) $ 400.00 Conditional Use Permit (CUP) $ 2,500.00 Environmental Impact Assessment (EIA) $ 220.00 Public Facilities Fee Agreement (PFF) $ 50.00 Public Notification Deposit $ 500.00 TOTAL $23,985.00 These fees have been carefully reviewed in order to accurately determine the amount of fees to be paid to the City. Most of the fees to be paid are straight forward and do not provide any options in determining the amount. However, the fees for the General Plan Amendment (GPA), Zone Change (ZC), the Non-Residential Tentative Map (CT) and the Non- Residential Condominium Permit (CP) are determined by a number of specific factors. The following is an explanation of how the fees for the GPA, ZC, CT and CP were determined. 2386 Faraday Avenue • Suite 120 • Carlsbad • CA 92008 • (619)438-1465 • Fax: (619)438-2443 Fees for a GPA are determined based on acreage either above or below 5 acres. For projects proposing a GPA for an area above 5 acres, the fee would be $2,500.00. For projects proposing a GPA for an area below 5 acres, the fee is $1,200.00. The acreage of the entire project site is 8.02 acres. Since the timeshare project is proposing a GPA from the General Plan land use designation of O to the land use designation of TS for only 2.85 acres of the total site, the fee will be $1,200.00. The remaining 5.17 acres of the site will remain OS. The fees for a ZC for 5 or less acres is $280.00 and for 5.1 to 25 acres the fee is $850.00. As previously stated, the entire site is 8.02 acres. Since the ZC is proposed for an area of only 2.85 acres of the total site, the fee will be $280.00. The remaining 5.17 acres will maintain the current zoning designation of OS. A Zone Code Amendment (ZCA) is currently being processed to define a timeshare unit as a non-residential unit. The fees to be paid are based on the assumption that timeshare units are non-residential units. This assumption is consistent with the ZCA request. Therefore, the CT and CP will be processed as a non-residential project. The fee for a non-residential CP of 51 units or greater is $10,504.00. By keeping with the previous assumption that timeshares are non-residential, the fee for the CP is $10,504.00. The fee for a non-residential CT project between 5-49 acres is $2,500.00 + $100.00 for each acre over 5 acres. Since the site is a total of 8.02 acres the fee is $2,500.00 + $300.00 (3.02 acres over 5 acres at $100.00 per acre) which equals $2,800.00. The fees which we believe should be paid for the submittal of this project total in the amount of $23,985.00. If you have any questions, please give me a call. Sincerely, Stan Weiler cc. Tim Stripe Pat O'Day 1200 in. *£»/>,$ LIFORNIA 92008 .DATE. DESCRIPTION 1570 08/20/93 OOOi CT / CWfJvj Hi i ,'- ... n • RECORDING REQUESTED BY AND • nnnpnR' S OFFICE ™WHENRECORDEDMAILTO: . RF: 23.00 FEES: 155.40 James H. Ellis, m, Esq. a*< AF= 37.00 HA LAW OFFICES OF D. DWIGHT WORDEN , I ' JP f , HF' 1. 00 462 Stevens Avenue, Suite 102 ' ty& -^y mSCs 57.00 Solana Beach, California 92075 f 4, MAIL TAX STATEMENTS TO: Grand Pacific Resorts, Inc. P.O. Box 4068 Carlsbad, CA 92018 c or.-*?* wTAKf TRANSFER TAX s^.J.jLJ, ______ „„. ;aH - 010 - 1O X 'lOMWfED ON FULL VALUE OF PROPERTY COi^/ta™ C: < OMPUTKO ON FULL VALUE LESS lf£tsS 5. r>\'CO. i- cf tiociai-aiiT. or agent determining tax -*- fin?' Area a Offices of D. Dwight Worden GRANT OF EASEMENT FOR CONSIDERATION IN THE SUM OF THIRTY-FOUR THOUSAND DOLLARS ($34,000), NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD ("Grantor") GRANTS to GRAND PACIFIC RESORTS, INC. ("Grantee") the Mowing described exclusive appurtenant easement for the construction, operation, maintenance, repair, and replacement of two (2) tennis courts, two (2) half-court basketball courts, two (2) sand volleyball courts, one (1) children's recreational area, picnic tables, fences, landscaping, and the right of ingress and egress for these purposes, in, over, under, and across the hereinafter described lands. Said easement touches and concerns certain real property situated in the City of Carlsbad, County of San Diego, State of California ("the Premises") and more particularly described in Exhibit "A" attached hereto. The above described easement is appurtenant to and shall be conveyed with the dominant tenement which is situated in the City of Carlsbad, County of San Diego, State of California, and is more particularly described in Exhibit "B" attached hereto. The above described easement is subject to the terms, conditions and covenants contained in the Statement of Limitations and Restrictions which is attached hereto as Exhibit "C" and incorporated herein by this reference. DATED: Noijth"Sah Diego County Transit Development Board Richard L. Fifer, Executi CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 1568 No. 5907 | State of (3/f ^ZxZ^? /ZrtJ^/f \ County of -&? ^U PZ^f) I | On fiffiZC J%. tf?6 before J, DATE ' L V personally appeared /\~LClftft /€/ \ rV r— i{! lApersonalfy known to me - OR - u i nx^fi^ Cheryl D. Plontus V ml^^aS^a Comm. f980097 j Olify ^ggl&OTARY PUBUC - CALtPOBMtl V 2\»2sS/ WMWBQOCOUNTY V ^-Ttif^^.^ ^.^j^-^mju^j,, ^ Though the data beiow is not required by law, it ms J fraudulent reattachment of this form. J CAPACITY CLAIMED BY SIGNER \ Q INDIVIDUAL i J3- CORPORATE OFFICER jl TrTLE{S) " ^ D PARTNER(S) D LIMITED { D GENERAL | D ATTORN EY-1N-FACT j D TRUSTEE(S) ( D GUARDIAN/CONSERVATOR D OTHER: J | 1 SIGNER IS REPRESENTING: 1, NAMEOFPERSON(S)OHEMTnY(IES) i fLJO/^-Tf^" \L,Ott /UfY t/^tf/US&'f \ /TTCT/e-ro T~|i ... .:^ .. _ ... me />/^^ J> . fLd/VTtf$ *JtT**.to4JALTC. NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" NAME(S)OFSIGNER(S) 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 ac- ^ \sr\t\\M\gs(\r\&(\ \f\ rYir* fhnt h/^/ch^/thAv ^vArn itoHv MlUWItJUytiU ivj lilt; Lncu I lo/ol lc/ll ley CAcUULcU f 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. WITNESS my hand and official seal. ( Jtt^W^O' /^CJyt^U^ ^ *S f SIGNATURE OF NOTARY iy prove valuable to persons relying on the document and could prevent DESCRIPTION OF ATTACHED DOCUMENT ^~ TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES 9 ' J/&/9 C* KATE &F DOCUMENT S1GNEFWS1 OTHER THAN NAMFD AROVF | i | i ©1993 NATIONAL NOTARY ASSOCIATION • 8236 Remmel Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 S3-10IS-2 MARCH IS, 1396 EXHIBIT "A" A PORTION OP SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE MFD MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY O? SAW DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHW3ST CORNER OF LOT 1, BLOCK 22 OF LA COSTA DOWNS UNIT NO. 1 OF MAP NO, 2 013 ,: SAID POINT BEING THE SOUTHWEST CORKER OF AN 'EASEMENT GRANTED TO SAN DIEGO GAS AND ELECTRIC IN DOCUMENT RECORDED OCTOBER 20, 1395 AS DOC. NO. 1995-0473820; THENCE ALONG THE SOUTHERLY LINE OF SAID EASEMENT, NORTH 7l°15'30" EAST, 15.02 P3ET TO TKB SOUTHEAST CORNER OF SAID EASEMENT; THENCE ALONG THE EASTERLY LINE OP SAID EASEMENT, NORTH 22C02'17" WEST, 38.69 FEET TO THE TR1?B POINT OP THENCE CONTINUING ALONG SAID EASTERLY LINS THE FOLLOWING BEARINGS AND DISTANCES: NORTH 22°02'17" WEST, 76.31 FEST,- THSNCE NORTH 3Oe34'O8" WEST, 20.22 FEET; TKENCE NORTH 22*02 ' 17" WEST, 252.69 FEET; THBNCE NO5LTH G7057'43" EASTV 45.50 FEET; THENCE NORTH 22°02'17" WEST, 42.00 FEST; PAGE 1 OF 2 EXHIBITA 1570 THENCE SOUT.q 67°57'43" WEST, 45.50 FEET; TKSNCE NORTH 22'02<i7" WEST, .105.01 FE3T TO TBS BBOISKIMQ OF A NON-TANGENT 200.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY, A RADIAL TO SAID POINT BEARS NORTH 27*54' 3 S" EAST/ THENCE LEAVING SAID EASTERLY LINE AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 33°15'02", AN ARC DISTANCE OF 115,07 FS3T; THENCE TANGENT TO SAID CURVE, SOUTH 28°50'22"' EAST, 252.55 FEET TO A POINT ON THE WESTERLY LINE OF THS NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD RIGHT-OF-WAY, 200.00 FEET WIDE; THENCE ALONG SAID WESTERLY LINE, SOUTH 19°07'33" EAST/ 162.48 FEET TO THE BEGINNING OF A. TANGENT 5829.65 FOOT RADIUS' CURVE CONCAVE NORTHEASTERLY; THENCS SOUTHEASTERLY ALONG -SAID CURVE THROUGH A CENTRAL AKGLF. OF 01°09'37", *j? ARC DISTANCE OF 118.05 PEST; THENCE LEAVING SAID RIGKT-OF-WAY, .SOUTH 67*57 '43" WEST, 55.35 FEET TO THE THUS POT-NTT Q? AREA = 35,201 SQUARE FEET (0.81 ACRES) MORE OR LESS. / PAGE 2 OP 2 WEST LINE BOOK 2182PAGF 305 \ EASEMENT TO \ SAN DIEGO GAS & ELECTRlCv \RBC. OCT. 20, 1995 \AS DOC. NO. 1995-0473820 \v V EASEMENT LINE DATA TABLE DELTA OR BEARING N 30T34lOSr W N 2?02'ir W S 2gSO'2r E SCALE: 1=100' LEGAL DESCRIPTION FOR. OF SECTION 20. T 1-2 S. R 4 W, SBBM. A. p.M. 274-010-TO OF BEARINGS S 6757'4y W NORTH UNE BLOCK 22. MAP 2013 : IE N 7nS'3<f E EXHIBIT"? Order No: 980112 50 U.AniDll D - DESCRIPTION 15?2 AN IRREGULAR SHAPED PARCEL OF LAND NEAR ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF LOTS 1 AND 2 IN SECTION 20, TOWNSHIP 12 SOUTH, RANGE 4 WEST, S.B.B.&M, SAID PARCEL BEING BOUNDED BY THE FOLLOWING DESCRIBED LINES: ON THE NORTH BY THE SOUTH LINE OF RANCHO AGUA HEDIONDA AS SAID SOUTH LINE WAS ESTABLISHED MAY 5, 1913, BY DECREE OF THE SUPERIOR COURT OF SAN DIEGO COUNTY, IN THAT CERTAIN ACTION NO. 16830 ENITLED "KELLY INVESTMENT COMPANY, CORPORATION, VS. CLARENCE DAYTON HILLMAN AND BESSIE OLIVE HILLMAN"; ON THE EAST BY THE WESTERLY LINE OF THE 200 FOOT RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY; ON THE SOUTH BY THE NORTHERLY LINE OF THE SOUTH 60 ACRES OF THE FOLLOWING DESCRIBED PROPERTY TAKEN AS A WHOLE: VIZ. LOT 2 IN SECTION 20, THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 20, AND THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, ALL IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, S.B.B.&M; AND BOUNDED ON THE WEST BY THE FOLLOWING DESCRIBED LINE: VIZ.: BEGINNING AT A POINT IN THE NORTH LINE OF LOT 1 IN SAID SECTION 20 DISTANT THEREON SOUTH 89° 55' 40" EAST 615.92 FEET FROM THE CENTER LINE OF STATE HIGHWAY AS SHOWN ON LICENSED SURVEYOR'S MAP NO. 339, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE SOUTHEASTERLY IN A DIRECT LINE 1680 FEET MORE OR LESS TO THE NORTHWESTERLY CORNER OF LOT 1 IN BLOCK 22, LA COSTA DOWNS UNIT NO. 1, ACCORDING TO MAP THEREOF NO. 2013, RECORDS OF SAID COUNTY. CHAWQES •'[ ELK OLD f f 7V***.^ 1e Iff-Of NEW f:'f" 7-8 :> 10 R •-9 S9 -. 3 CUI 4+1$ t4IZ ^J-*? 5*/7 i ! 1 ! I tr 1 1 i "thU T>l«t 1> Itor your ii4 In1«14 vlUl rof.r.tic. to >tn«t> *nl otMr - c«l». Mill* tt>i< pl»t 1» IxlUvX to to! COI- r*«tt. tb* Company K«BUM«« no \l«Jbillty f«v *nylog* oecun-tng by r*aa(w> of raltwtc* tb«r*ca. 1574 Exhibit C STATEMENT OF LIMITATIONS AND RESTRICTIONS This Statement of Limitations and Restrictions ("Statement") limits the extent and nature of the Grant of Easement ("the Grant of Easement") from North San Diego County Transit Development Board ("Grantor") to Grand Pacific Resorts, Inc. ("Grantee") concerning the real property described in Exhibit "A" attached hereto ("the Premises") as follows: Section 1. CONSIDERATION (A) As partial consideration for the Grant of Easement, Grantee agrees to pay to Grantor the sum of Thirty-Four Thousand nnHara ($14 nqfl as follows: (i) The sum of Twelve Thousand Dollars ($12,000) upon execution of this Statement by Grantee; (ii) The balance shall be paid in accordance with the terms of the attached Promissory Note. (B) As additional consideration for the grant of Easement, Grantee agrees to strictly comply with the provisions of this statement. (C) As additional consideration for the Grant of Easement, Grantee shall pay when due all amounts described in Section 23(A). Section 2. PERMITTED USE (A) Grantee shall not use or permit the use of the Premises for any purpose other than described in the Grant of Easement, without the prior written consent of Grantor. (B) Grantee shall not use or permit the use of the Premises in any manner that will tend to create waste or nuisance. In using the Premises, and in constructing, maintaining, operating and using the Improvements thereon, Grantee shall comply with any and all requirements imposed by federal or state statutes, or by ordinances, orders or regulations or any governmental body having jurisdiction thereover, including, but not limited to, building and zoning ordinances, restricting or regulating the character, dimensions or locations of any improvements on the Premises. Should any governmental body having jurisdiction over the matter require Grantor to dedicate, restrict or otherwise encumber any portion of the Premises, or any of its adjoining property, as a condition to approval of Grantee's use of the Premises, Grantor may, if said condition is unacceptable to Grantor, terminate this Easement. Notwithstanding the foregoing, the Grantor shall execute the annexation document prepared by the Carlsbad Community Facilities District No. 1. Grantee covenants to immediately notify Grantor in writing should any of the above occur. (C) Grantee shall not place or permit to be placed upon the Premises any gasoline or any hazardous or explosive material, waste or substance as defined by Section 7(B), below. (D) Grantee shall not use or permit the use of the Premises for any unlawful purpose. (E) Grantee, at its expense, shall arrange for and assume all costs related to the filing of any map required under any subdivision map act and of any environmental impact report required by any governmental body having jurisdiction in the matter. Page 1 of 10 1575 (F) If any governmental body seeks to impose any conditions on approval of Grantee's use of the Premises, Grantor may terminate the Easement forthwith if any such condition affects any other of Grantor's property or affects the Premises after this Easement terminates. Nothing in this Section shall be construed as waiving Grantor's absolute right to terminate this Easement as provided below. Sections. INSURANCE (A) For the duration of this Easement, Grantee shall, at its sole expense, maintain and furnish evidence to Grantor of insurance written through an insurance company having a Best's rating of B+ 13 or better and licensed to do business in the State of California, meeting the requirements stated below in a form satisfactory to Grantor, for each of the following types of insurance in amounts not less than the amounts shown below: (i) COMPREHENSIVE LIABILITY INSURANCE on an occurrence basis which provides for the following: (a) Such insurance shall be primary, without right of contribution from other insurance which may be in effect. (b) Such insurance shall not be invalidated by the acts or omissions of other insureds. (c) Such insurance shall not be modifiable or cancelable or non- renewable without 30 days' prior written notice to Grantor (except in the case of cancellation for nonpayment of premium in which case cancellation shall not take effect until at least 10 days' notice has been given to Grantor). This provision is hereinafter referred to as A Notice of Modification or Cancellation. (d) Grantor shall be named as additional insured as its interests shall appear. (e) Contractual liability. (f) Premises and personal injury endorsements. (g) Severability of interest clause. (ii) WORKERS COMPENSATION INSURANCE which shall cover all persons employed by Grantee in the conduct of its operations on the Premises and shall provide for the following: (a) Notice of Modification or Cancellation. (b) All states endorsements. (iii) Any umbrella or excess liability insurance will provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance and will provide for Notice of Modification or Cancellation. (iv) All policy or endorsement limitations relating specifically to operations on or near railroad property or track shall be eliminated. (v) Either a properly completed certificate of insurance executed by an authorized representative of the insurer or insurers or a certified copy of the policy or policies shall be furnished to Grantor prior to granting the Easement and no later than thirty (30) days prior to expiration of any insurance policy. In the event Grantee fails to comply with this requirement, Grantor may, but shall not be obligated to, obtain such Page 2 of 10 1576 insurance and keep the same in effect and, upon demand, Grantee shall pay to Grantor, as Additional Fees, the premium cost thereof. (vi) Grantee agrees that the providing of such insurance shall not in any way limit its liability to Grantor, as set out herein. (vii) Grantee shall notify Grantor within twenty-four (24) hours after the occurrence of any accident or incident the Premises which could give rise to a claim under any of the insurance policies required hereunder. (viii) Minimum policy limits required under provisions of this Section 3 are: (a) COMBINED SINGLE LIMIT. Comprehensive or Commercial General Liability: $1,000,000. Section 4. CONDITION OF PREMISES (A) Grantee warrants that it inspected the Premises and accepts the Premises in an "AS IS, WHERE IS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION" with all fault and with full knowledge of the physical condition, of all zoning and other land use laws and regulations affecting the Premises, and of the conditions, restrictions, encumbrances and all matters of record relating to the Premises. (B) Grantee is My aware that there may be subterranean facilities on the Premises, notwithstanding the absence of markers, monuments or maps indicating their existence. (C) Grantee hereby releases Grantor from all future claims, actions or demands that Grantee may have or may hereinafter have, known or unknown, in any way relating to the quality, fitness or condition of the Premises, and Grantee hereby specifically waives all rights under California Civil Code §1542, which provides that: "[a] general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor." Section 5. MAINTENANCE AND REPAIR (A) Grantee shall, at its sole expense and to the reasonable satisfaction of Grantor, keep and maintain the Premises and all improvements thereon in good repair and in a neat and safe condition, and shall promptly make all repairs and replacements that may become in the opinion of the Grantor necessary to the Premises or improvements thereon, whether structural or non structural, ordinary or extraordinary. (B) Grantee shall not make or permit any other person to make any alterations, additions, or improvements to the Premises without Grantor's prior written consent. (C) The maintenance and/or construction of any improvements or structures on the Premises shall occur at such times and in such manner as not to interfere in any way whatsoever with any Railroad operations and shall be done subject to the inspection and prior and subsequent approval of Grantor. (D) In the event that Grantor shall at any time or times construct an additional track or tracks or other railroad facilities/equipment, Grantee agrees, upon receiving Page 3 of 10 1577 written notice from Grantor, to construct and maintain additional improvements or extend or change said improvements or immediately remove, reconstruct, alter or make changes in the location of said improvements as may be requested by Grantor and in a manner satisfactory to Grantor, all at Grantee's expense. Grantee shall give Grantor fifteen (15) days written notice prior to the commencement of any construction, maintenance or reconstruction, and Grantor may require that Grantee pay for flag protection or such other safety measures as Grantor in its sole discretion decides is necessary for safe railroad operation on the right-of-way which measures shall be at the expense of Grantee. (E) Grantee shall not commence any improvements, additions or alterations on the Premises until Grantee has received Grantor's written consent, and until fifteen (15) days after Grantor has received notice from Grantee stating the date work on such improvements, additions or alterations is to commence. Grantor shall have the right to enter the Premises to post notices of non responsibility. (F) Grantee shall not permit any mechanics' or other liens to be filed against the Premises nor against Grantee's interest herein by reason of labor and materials furnished to the Premises at Grantee's instance or request. If any such lien is filed against the Premises, Grantee shall cause the same to be discharged of record, either by payment of the claim or by posting and recording the bond contemplated by California Civil Code 3143, within twenty (20) days after demand by Grantor. Grantee shall indemnify, hold harmless and defend Grantor from and against any such lien. Section 6. INDEMNIFICATION: (A) Grantee shall release, defend (with counsel satisfactory to Grantor), indemnify and hold Grantor harmless from and against any and all liability, cost and expense for loss of or damage to property (including but not limited to the Premises) and for injuries to or death of any person (including, but not limited to, the property and employees of each party hereto) arising from, relating to, or resulting from: (1) The use of the Premises by Grantee, its agents, employees, or invitees; (ii) Any work performed on the Premises or materials furnished to the Premises at the instance or request of Grantee or any agent or employee of Grantee; (iii) Default under this Statement by Grantee, or by any agent or employee of Grantee, or failure by Grantee or any agent or employee of Grantee to comply with any requirement of Law; or, (iv) The condition of the Premises or any part thereof, regardless of whether such liability, cost or expense is caused or contributed to by the negligence, active or passive, of Grantor. (B) Upon written notice from Grantor, Grantee agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Grantor by any public body, individual, partnership, corporation, or other legal entity relating to any matter covered by this Grant of Easement for which Grantee has an obligation to assume liability for and/or to indemnify and hold harmless Grantor pursuant to Section 6(A) above. Grantee shall pay all the costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, Page 4 of 10 1578 settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, including, but not limited to, the theories on intentional misconduct, negligence, strict liability, nuisance, breach of statute, regulation, or ordinance or any theory created by statute or ordinance, whether local, state or federal. (C) It is expressly understood and agreed that the foregoing provisions shall survive the termination of this Grant of Easement. (D) The term "Grantor", as used in this Section shall include Grantor, San Diego Northern Railway, and the successors, assigns, affiliated companies and agents of any of them as their interests may appear in relation to the Premises. (E) The requirements as to the types and limits of insurance coverage to be maintained by Grantee as required by Section 3 above, and any approval of said insurance by Grantor, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Grantee pursuant to this Statement, including but not limited to the provisions concerning indemnification. Section 7. COMPLIANCE WITH LAW; ENVIRONMENTAL IMPAIRMENT: (A) Notwithstanding the provisions of Section 2(C), in the event the Premises are now or in the future used in generating, taking on, storing, handling, disposal or transporting of "hazardous waste" or "hazardous substances", Grantee, at its expense, agrees folly to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions and ordinances regardless of when they become or became effective, (hereinafter referred to as "Standards"), concerning "hazardous waste" and "hazardous substances". Grantee further agrees upon request to immediately furnish Grantor with proof, satisfactory to Grantor, that Grantee is in such compliance. In any event, Grantee shall allow Grantor to enter upon the Premises at reasonable times for the purpose of inspection. Should Grantee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Grant of Easement by serving five (5) days written notice of termination upon Grantee; but any waiver by Grantor of any default of Grantee's obligations shall not constitute a waiver of the right to terminate this Easement for any subsequent default by Grantee which shall be governed by the sections of the Statement regarding Grantee's vacation from the Premises. Compliance with the obligation stated in this Section 7 shall not preclude a termination of this Easement resulting from the use of the Premises in violation of Section 2(C). (B) The terms "hazardous waste" and/or "hazardous substances" as used herein refer to any substance, waste, or material which is determined by any state, federal or local governmental authority to be capable of posing a risk of injury to health, safety, and property, including, but not limited to, all substances, wastes and materials designated or defined as hazardous, extremely hazardous, or toxic pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1321; Section 1004 of the Resource and Conservation and Recovery Act, 42 U.S.C. Section 6903; Section 101 of the Comprehensive Environmental Response Compensation Page 5 of 10 1579 and Liability Act; 42 U.S.C. Section 9601; Section 25140 of the Hazardous Waste Control Law, Cal. Health and Safety Code Sections 24117 through 25140; Section 25316 of the Carpenter-Presley-Tanner Hazardous Substance Account Act, Cal. Health and Safety Code Section 25316 and Section 25501 of the Hazardous Materials Release Response Plans and Inventory Law, Cal. Health and Safety Code Section 25281. (C) Notwithstanding anything contained in the liability sections hereof, in case of a default under the obligations contained in this Section 7, or any of them, regardless of the negligence or alleged negligence of Grantor, Grantee agrees to assume liability for and to defend and hold harmless Grantor from and against any and all injuries to any person and damage to property (including but not limited to the Premises), including without limitation, employees and property of Grantor and Grantee and all related expenses, including without limitation attorneys' fees, investigators' fees and litigation expenses. Grantee, at its cost, shall assume the defense of all claims, suits or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Grantor or Grantee. Grantee also agrees to reimburse Grantor for all costs of any kind incurred as a result of the Grantee's failure to comply with this Section, including, but not limited to, fines, penalties, clean-up and disposal costs, transporting, treating, storing, or disposing of "hazardous waste" or "hazardous substances" on the Premises. (D) Should any use, discharge, leakage, spillage, emission, or pollution of any type occur upon or from the Premises due to Grantee's use and occupancy thereof or use or occupancy permitted by Grantee, Grantee at its sole expense, shall clean all property affected thereby, to the full satisfaction of Grantor and any governmental body having jurisdiction thereover. Section 8. TERMINATION; SURRENDER OF PREMISES: (A) This Easement will terminate by the following means: (i) Should Grantor need to use the Premises for Railroad purposes, it shall serve a thirty (30) days written notice of termination upon Grantee, stating therein the date that such termination shall take place, and upon the termination date specified in such notice this Easement and all the rights of Grantee hereunder shall absolutely cease and terminate. Provided that Grantee is not then in default of any provisions of this Statement, upon any such termination Grantor shall pay Grantee a termination payment in the amount provided for in Exhibit D attached to the Grant of Easement and incorporated herein. (ii) Grantee, by serving thirty (30) days written notice of termination Grantor, stating therein the date that such termination shall take place, and upon the termination date specified in such notice this Easement and all the rights of Grantee hereunder shall absolutely cease and terminate. (iii) If Grantee, its successors or permitted assigns, shall use the Premises in any manner other than as stated in Section 2 above without the prior written consent of Grantor. Page 6 of 10 (iv) Grantee fails to pay any payment required to be made by Grantee hereunder within ten (10) days after written notice by Grantor or fails to perform any other term or condition of this Easement within fifteen (15) days after written notice by Grantor or abandons or vacates the Premises. (B) Upon termination of this Easement for any reason, Grantee shall leave the Premises in a neat and clean condition, satisfactory to Grantor and free of all Grantee's personal property (if any). (C) Upon termination of the Easement for any reason, all repairs, alterations, additions and improvements made by Grantee on the Premises shall be promptly and fully removed to the satisfaction of Grantor at Grantee's sole cost and expense. If Grantee fails to do so, Grantor may perform such removal and restoration in which case Grantee shall pay Grantor within thirty (30) days after demand therefor the cost of removal of such improvements. Section 9. CONDEMNATION: If all or part of the Premises is acquired by eminent domain or purchase in lieu thereof, Grantee acknowledges that it shall have no claim to any compensation awarded for the taking of the Premises or any portion thereof or for loss of or damage to Grantee's improvements. Section 10. WAIVER OF RELOCATION BENEFITS: Grantee hereby acknowledges that it has been informed that Grantor is a public entity and that the Premises has previously been acquired by Grantor for a public purpose. Grantee further acknowledges that any rights acquired under this Statement arose after the-date of acquisition of the Premises and that said rights are subject to termination when the Premises is needed by Grantor for Railroad use. Grantee hereby acknowledges that at the time of said termination of this Statement by Grantor, it will not be a "displaced person" entitled to any of the relocation assistance or benefits offered to displaced persons under State or Federal Law. Section 11. EXCLUSIVE EASEMENT: This Easement is granted exclusively to Grantee. No other person or entity has right in this Easement unless this Statement is amended by Grantor and Grantee. Section 12. ATTORNEYS' FEES: If either party brings any action against the other to enforce any provisions of this Statement or collect any amount due pursuant to this Statement, the losing party shall pay reasonable attorney's fees of the prevailing party in addition to the judgment and court costs. Section 13. GRANTOR'S RIGHT OF ENTRY: Grantee shall permit Grantor and the agents and employees of Grantor to enter into and upon the Premises at all reasonable times and upon reasonable prior notice to Grantee for the purpose of inspection, repair, posting notices of nonresponsibility, or exhibiting the Premises to prospective tenants or buyers. Section 14. NONWAIVER: The waiver of Grantor of any term, covenant or condition herein contained shall not be deemed to be a waiver of that term, covenant or condition for any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of any payments hereunder by Grantor shall not be deemed to be a waiver of any preceding violation by Grantee of any term, covenant or condition of this Statement, other than failure of Grantee to pay the particular rental so accepted, regardless of Grantor's knowledge of such preceding breach at the time of acceptance of such rent. Page 7 of 10 1581 Section 15. TIME OF ESSENCE: Time is of the essence of each provision of this Easement. Section 16. ENTIRE STATEMENT; AMENDMENT: This Statement sets forth the entire agreement between the parties with respect to the Premises and supersedes all prior agreements, communications, and representations, oral or written, express or implied, since the parties intend that this be an integrated agreement. This Statement shall not be modified except by written agreement of the parties. Section 17. EXISTING FACILITIES: (A) Grantor hereby excepts and reserves the right, to be exercised by Grantor and by any others who have obtained or may obtain permission or authority from Grantor so to do, to operate, maintain, review and relocate any and all existing pipe, track, utility lines and communication (including without limitation fiber optic) lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; (B) Any such construction, operation, relocation or maintenance shall not be done at Grantee's expense unless such work is requested by Grantee or done for the benefit of Grantee. Section 18. VIBRATIONS AND NOISE FROM TRAIN OPERATION; BARRICADES: (A) Grantee hereby recognizes and acknowledges that railroad tracks are located on or adjacent to the Premises. Grantee recognizes that the operation of trains over the tracks does and will produce vibrations and noise levels which may be considered objectionable by Grantee or the employees, agents, tenants, family members or invitees of the Grantee. Grantee understands that as a consequence of commuter rail operations, train traffic will be greater during peak commuter hours. With knowledge and understanding of these facts Grantee hereby accepts the Premises and agrees that no legal action or complaint of any kind whatsoever shall be instituted against Grantor by Grantee or on Grantee's behalf as result of such vibrations and noise levels or as a result of the use of the railroad tracks in general, and to indemnify and save harmless Grantor against any loss, damage, liability or expense which might occur as a result of such action being taken by Grantee, its employees, agents, tenants or invitees or anyone on Grantee's behalf. Grantee, at its expense, shall install and maintain barricades, fences, and fence gates as may be requested by Grantor. (B) The term "Grantor" as used in this Section shall include any railroad company operating on such tracks. Section 19. SUCCESSORS, ASSIGNS AND LIABILITY: The terms, covenants, conditions and agreements herein contained and as the same may from time to time hereafter be supplemented, modified or amended, shall apply to, bind and inure to the benefit of the parties hereto and their heirs, executors, administrators, legal representatives, successors and assigns, respectively. In the event either party now or hereafter shall consist of more than one (1) person, firm or corporation, then and in such event all such persons, firms and/or corporations shall be jointly and severally liable as parties hereunder. Section 20. RIGHT TO ESTOPPEL CERTIFICATES: Grantee shall, within ten (10) days after notice from Grantor, execute and deliver to Grantor, in recordable form, a certificate Page 8 of 10 1582 stating that this Grant of Easement is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. Failure to deliver this certificate within the ten (10) days shall be conclusive that the Easement, as restricted by this Statement, is fully conveyed and in effect and has not been modified except as may be represented by the Grantor. If Grantee fails to deliver this certificate within the ten (10) day period as specified, Grantee irrevocably constitutes and appoints the Grantor as its special attorney-in-fact to execute and deliver the certificate to any third party. Section 21. INVALIDITY OF PARTICULAR PROVISIONS: If any term or provisions of this Statement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Statement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Statement shall be valid and be enforced to the full extent permitted by Law. Section 22. FORM OF NON DISCRIMINATION AND NON SEGREGATION CLAUSES: Grantee shall refrain from restricting the lease, sublease, rental, transfer, use, occupancy, improvement, tenure, or enjoyment of the Premises or any part thereof, on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All subleases and contracts pertaining to any right of use or occupancy of the Premises shall contain or be subject to substantially the following non-discrimination and non-segregation clauses: (A) IN LEASES: "The Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under and through it, and this Statement is made and accepted and subject to the following conditions: There shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, natural origin, or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall Grantee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number or occupancy of tenants, grantees, or vendees in the land hereby leased." (B) IN CONTRACTS: "There shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, natural origin, or ancestry in the sale, lease, sublease, rental, transfer, improvement, use, occupancy, tenure or enjoyment of the Premises, nor shall the contracting party itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, grantees, subtenants, subgrantees, or vendors of the Premises." Section 23. OTHER CONDITIONS: (A) Grantee will obtain all necessary permits and pay all license fees and also agrees to pay before they become delinquent all taxes, assessments, penalties or fines which may be levied or assessed upon or against the Premises or Grantee=s interest, or by reason of this Grant of Easement Notice is hereby given pursuant to California Revenue and Tax Code Section 107.6 that this Easement may create a property Page 9 of 10 (B) (C) (D) (E) DATED: DATED: 1583 interest subject to property taxation and may subject the Grantee to the payment of property taxes levied on such interest. All plans, specifications and work plan procedures for any work on the Premises shall be approved by Grantor prior to the use thereof. Grantee is to pay for the costs of bringing all necessary utilities to the site. Grantee's right to lease the premises shall be subject to Grantor's review and approval of the language of any such lease. Termination of this Basement shall not release either party from any liability or obligation hereunder resulting by reason of this Grant of Easement or from an event which occurred before termination. PACIFIC ,R2TSORTS, INC. and by: David Co-President Brown, Co-President STATE OF CALIFORNIA ) )ss. COUNTY OF SAN DIEGO ) On April /<{? appeared " , <1996, before me, a Notary Public for the State of California, personally , proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons acted, executed the instrument. WITNESS my hand and official seal. it- '—*•\CYNTHIA A. JACQUES COMM.# 977306 5 Nolow Public — California 5 '$ SAN DIEGO COUNTY y My Comm. Expires NOV 6.1996 | Page 10 of 10 Exhibit D Schedule of Termination Payments pursuant to Section 8(A)(i). 1584 Year of Termination Amount of Payment No. 1 No. 2 No. 3 No. 4 No. 5 No. 6 No. 7 No. 8 No. 9 No. 10 No. 11 No. 12 No. 13 No. 14 No. 15 No. 16 No. 17 No. 18 No. 19 No. 20 No. 21* $12,000.00 $24,000.00 $30,600.00 $28,900.00 $27,200.00 $25,500.00 $23,800.00 $22,100.00 $20,400.00 $18,700.00 $17,000.00 $15,300.00 $13,600.00 $11,900.00 $10,200.00 $8,500.00 $6,800.00 $5,100.00 $3,400.00 $1,700.00 $0.00 ' No Termination Payment for this year and succeeding years. Page 1 of 1