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Home My WebLink AboutCT 14-08; City of Carlsbad and Municipal Water District; 2016-0689331; Joint Use AgreementRECORDING REQUESTED BY CHICAGO TITLE COMPANY WHEN RECORDED RETURN TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOC# 2016-0689331 //IIIII IIIII IIIII 111111111 IIIII/ 11111111111111111111 IIIII IIIII //IIIII/ Dec 15, 2016 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $87.00 PAGES: 25 SPACE ABOVE THIS LINE FOR RECORDER'S USE Assessor's Parcel No.: 211-023-07,212-271-02,211-130-03- 00 Project: DEV14056 Related Projects: CT140008, GPA140003, ZC140002, SDP14011 Project Name: WESTIN HOTEL & TIMESHARE AGREEMENT FOR SHARED ACCESS AND USE OF SUBPHASE 1.1 COMMON AREA This Agreement for Shared Access and Use of Subphase 1.1 Common Area ("Agreement") is made to be effective as of the /5 day of December, 2016, by and between the CITY OF CARLSBAD, a California municipal corporation, and the CARLSBAD MUNICIPAL WATER DISTRICT, a California municipal water district, as tenants in common, as the fee owner of Parcel A (defined below) ("Parcel A Owner"), the CITY OF CARLSBAD, a California municipal corporation, as the fee owner of Parcel B (defined below) ("Parcel B Owner"), GRAND PACIFIC CARLSBAD HOTEL, L.P., a Delaware limited partnership ("Parcel A Tenant"), GRAND PACIFIC CARLSBAD, L.P., a California limited partnership ("Parcel B Tenant"), and GRAND PACIFIC MARBRISA OWNERS ASSOCIATION, a California non- profit mutual benefit corporation ("MarBrisa HOA") (with each party sometimes called a "Party", or collectively the "Parties"). A. Concurrently herewith, Parcel A Owner, as ground lessor, and Par~ A Tenant, as ground lessee, have entered into that certain Ground Lease dated December L:i_, 2016 (as the same may be amended, reinstated or replaced from time to time, the "Hotel Addition Ground Lease"), pursuant to which Parcel A Owner will ground lease to Parcel A Tenant certain land located in San Diego County, California, as more particularly described on Exhibit "A", attached hereto and incorporated herein by reference ("Parcel A") upon which land Parcel A Tenant intends to construct at least seventy-one (71) hotel rooms and ancillary improvements that upon completion will be operationally integrated into the adjacent hotel (referred to herein as the "Hotel Addition"). B. Concurrently herewith, Parcel B Owner, as ground lessor, and Parcel B Tenant, as ground lessee, have entered into that certain Ground Lease dated December /5', 2016 (as the same may be amended, reinstated or replaced from time to time, the "Time Share Addition 4838-6669-1389.4 Ground Lease") pursuant to which Parcel B Owner will ground lease to Parcel B Tenant certain land located adjacent to Parcel A in San Diego County, California, as more particularly described on Exhibit "B" attached hereto and incorporated herein by reference ("Parcel B"), upon which land Parcel B Tenant intends to construct a development of not less than thirty-two (32) time share vacation units and ancillary improvements (the "Time Share Addition") which upon completion will be operationally integrated into the adjacent MarBrisa!Hilton Grand Vacation Resort. C. Parcel B Tenant is the developer of the MarBrisa/Hilton Grand Vacation Resort ("Project") located at 1594 MarBrisa Circle, Carlsbad, California, as more particularly described in that certain Declaration of Covenants, Conditions, and Restrictions for Vacation Ownerships in Grand Pacific MarBrisa Resort ("Declaration") recorded in the office of the Recorder of San Diego County, San Diego, California, on May 8, 2006 as Document No. 2006-0324250. The Declaration was amended by an Amendment recorded on December 14, 2007 as Document No. 2007-0772538 and re-recorded on December 21, 2007 as Document No. 2007-0786636; was further amended by a Second Amendment recorded on December 12, 2008 as Document No. 2008-0635322; was further amended by Third Amendment recorded on December 3, 2012 as Document No. 2012-0753734; was further amended by a Fourth Amendment recorded on January 25, 2013 as Document No. 2013-0053076; was further amended by a Fifth Amendment recorded on July 25,2014 as Document No. 2014-314924; and was further amended by a Sixth Amendment recorded September 17,2014 as Document No. 2014-400512 (collectively, the "Declaration as Amended"). D. The Project, if developed as planned will consist of a four-phased 380-unit time share offering. Phase 1 consists of eighty (80) completed Units in Subphases 1.1-1.3. Phase 2 currently consists of one hundred (100) completed Units in Subphases 2.1-2.5 and 2.7-2.9. The common facilities for this Project include a reception/lobby, three swimming pools: one pool in Phase 1 and two pools in Phase 2, adjacent whirlpools, a fitness center, and a clubhouse. The Project shares non-exclusive use of common roadways and parking areas with the adjacent hotel and conference center owned by Parcel A Tenant. Parcel B Tenant, as the developer of the Project reserved and retained rights to certain non-exclusive easements over, under, across and through the Project, including all Common Areas (as defined in the Declaration as Amended) to construct, complete and repair real property improvements in each Phase (as defined in the Declaration as Amended) ("Developer Reserved Easements"). Parcel B Tenant intends to annex the Time Share Addition to the Project as Phase 4.1. E. MarBrisa HOA is the association of timeshare interval owners charged with the right, power and duty to maintain, repair, replace and/or restore as may be necessary the Common Area of the Project to ensure the property is at all times kept in a clean, sanitary, workable, attractive and first class condition so that the appearance and value of the Project as a whole is preserved. F. Subphase 1.1 of the Project includes an undeveloped Common Area ("Subphase 1.1 Common Area"), described in Exhibit "C" attached hereto and incorporated herein by reference, and depicted in Exhibit "C-1" attached hereto and incorporated herein by reference. Subphase 1.1 Common Area shares a common boundary with both Parcel A and Parcel B. Subphase 1.1 Common Area is subject to the Developer Reserved Easements and also a 30-foot -2- 4838-6669-1389.4 wide easement in favor of Parcel A and Parcel B for the purpose of street, highway, public utility and incidental purposes (originally recorded in the office of the Recorder of San Diego County on January 12, 1961 as Document No. 6642). The Subphase 1.1 Common Area, together with Parcel A and Parcel B are together referenced herein as the "Properties", or individually, each a "Property". G. Pursuant to the Developer Reserved Easements, Parcel B Tenant intends to develop Subphase 1.1 Common Area to include grading, retaining walls, landscaping, pedestrian walkways, driveways for vehicular ingress and egress, parking areas, storm water retention basin and related improvements, and if applicable, any utilities ("Subphase 1.1 Common Area Improvements") to be constructed on Subphase 1.1 Common Area at no cost to MarBrisa HOA. H. Because of the adjoining boundary between Subphase 1.1 Common Area, Parcel A and Parcel B, the Parties desire to integrate and share the mutual benefits of the Subphase 1.1 Common Area Improvements, on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, the mutual agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Benefitted and Burdened Parties/Binding Effect. The rights and obligations established in this Agreement run with the land and are intended by the Parties to provide for the reciprocal benefit and burden of Subphase 1.1 Common Area, Parcel A and Parcel B. Parcel A Party and Parcel B Party will each have the right to further delegate the use of the rights and duties granted to Parcel A Party's and Parcel B Party's tenants and each of their contractors, licensees, employees, managers and successors and assigns (collectively, the "Parcel A and Parcel B Party Permittees"). The "Parcel A Party" means the ground lessee of the Hotel Addition, whether under the Hotel Addition Ground Lease or any reinstatement or replacement thereof or any new ground lease pursuant to a written lease agreement with the fee owner of Parcel A provided the ground lessee is an owner of all or a portion of the hotel property immediately adjacent to the west of the Hotel Addition. When there is not any ground lease of the Hotel Addition in effect, "Parcel A Party" means the fee owner of Parcel A. The "Parcel B Party" means the ground lessee under the Time Share Addition Ground Lease so long as the Time Share Addition Ground Lease is in effect. When the Time Share Addition Ground Lease is no longer in effect, "Parcel B Party" means the fee owner of Parcel B. Owners and guests of MarBrisa HOA, the Parcel A and Parcel B Party Permitees are collectively as the "Parties' Permitees". 2. Improvements. Parcel B Tenant shall construct or cause to be constructed all Subphase 1.1 Common Area Improvements in accordance with plans approved by the City of Carlsbad, and in compliance with all applicable laws and regulations. All plans for Subphase 1.1 Common Area Improvements must be presented and approved by MarBrisa HOA, with such approval not to be unreasonably withheld, conditioned or delayed. For purpose of clarity, all Subphase 1.1 Common Area Improvements will be made at no cost to MarBrisa HOA. -3- 4838-6669-1389.4 A. Demolition of Existing Water Lines. Parcel B Tenant will, at its cost and expense, complete the removal of the existing water line and reclaimed water line shown on Exhibit "C-2" attached hereto, both of which have been abandoned by Parcel A Owner and Parcel B Owner. The City of Carlsbad approved the demolition and on December 2, 2016 issued Demolition Permit Number CB#l6-3751 (the "Demolition Permit"). MarBrisa HOA hereby approves Parcel B Tenant performing such work in accordance with the Demolition Permit. B. Grading and Improvement Plans. Parcel B Tenant will, at its cost and expense, construct, install and complete the grading and improvements in the Developer's Reserved Easements, including Subphase 1.1 Common Area Improvements and the installation of a driveway extension from Parcel B, driveway tum-around, parking, pedestrian pathway extension from Parcel B, storm water retention basins and all related infrastructure improvements, including drainage, sewer, potable water, reclaimed water and fire lines as such are shown and described in the drawing submitted to the City of Carlsbad, Drawing Number DWG 496-2A (as the same may be revised from time to time, the "Grading and Improvement Plans"). MarBrisa HOA hereby approves Parcel B Tenant performing such work in accordance with the Grading and Improvement Plans when and as approved by the City of Carlsbad. C. Pedestrian Pathways. For purpose of clarity the Grading and Improvement Plans for Subphase 1.1 Common Area Improvements include the installation ofthe pedestrian pathway from Parcel A to the driveway tum-around, pedestrian scenic look-out area, and all related infrastructure improvements. MarBrisa HOA hereby approves Parcel B Tenant performing such work in accordance with the Grading and Improvements Plans when and as approved by the City of Carlsbad. 3. Shared Use of Subphase 1.1 Common Area and Improvements. The Parties, the Parties' Permittees and each Party's guests, visitors, business patrons (collectively "Permittees") will share the non-exclusive use and enjoyment over, under, across Subphase 1.1 Common Area and the Subphase 1.1 Common Area Improvements for the purpose of pedestrian and vehicular access, ingress and egress across the established access elements, including walkways, driveways and passageways, as exist from time to time on the Subphase 1.1 Common Area. All Permittees shall observe and follow the reasonable rules and regulations established from time to time by MarBrisa HOA relative to operation of the Project and if applicable specific reasonable rules and regulations for the Subphase 1.1 Common Area. MarBrisa HOA shall not modify the established access elements of the Subphase 1.1 Common Area in any manner without the prior approval of Parcel A Party and Parcel B Party, with such approval not to be unreasonably withheld, conditioned or delayed. 4. Storm Water Retention Basin and Drainage. Parcel A Owner and Parcel B Owner entered into that certain Easement Agreement, dated December ;;;, 2016, and recorded by the Office oq~e fi-fforder for the County of San Diego on December jj', 2016, as Document .9f Number'l.Cib--~'J.2'(''Ground Lease Easement Agreement"). Under the terms of the Ground Lease Easement Agreement, Parcel A Party and Parcel B Party provide for the discharge of surface and storm water drainage between Parcel A and Parcel B. The Parties will share the non- exclusive use of the storm water retention basins and infrastructure on the Subphase 1.1 Common Area designed to capture the storm water run-off and any surface water run-off for the benefit of all Parties. ~ w{ c., ~o oS'l2LJlf -4- 4838-6669-1389.4 5. Maintenance, Repair and Upkeep. Parcel A Party and Parcel B Party shall at all times maintain, repair, and if necessary replace, and keep clean the Subphase 1.1 Common Area Improvements in an attractive first-class condition at all times. Parcel A Party shall be responsible for and pay the costs to maintain, repair, replace and upkeep all landscaping related to the Subphase 1.1 Common Area Improvements and Parcel B Party shall be responsible for and pay the costs to maintain, repair, replace and upkeep the sidewalks, driveways, parking areas and other improvements (other than landscaping) with respect to the Subphase 1.1 Common Area Improvements. 6. Insurance and Indemnity. Each Party shall provide evidence of insurance coverage, reasonably satisfactory to the other Parties, insuring such other Parties against loss or damage to person or property arising from such Party's access and use upon the Subphase 1.1 Common Area. In each case evidence of such insurance shall provide that coverage may be canceled by the insuring Party only upon its giving thirty (30) days prior written notice to the insured Party. Insurance limits may be increased from time to time by the mutual agreement of the Parties. Each Party hereby agrees to indemnify, defend, protect and hold the other Parties free and harmless from and against any claim, cause of action, lawsuit, damage cost, liability or expense, including reasonable attorneys' fees and costs, arising from its use of the Subphase 1.1 Common Area. Further, each such Party's lender or lenders shall be named as an additional insured or additional loss payee under the insurance coverage to be provided by this paragraph. 7. Duration. The provisions of this Agreement will run with and bind Parcel A, Parcel B and Subphase 1.1 of the Project and will remain in effect perpetually to the extent permitted by law. 8. Entire Agreement. This Agreement contains the entire agreement between the Parties relating to the non-exclusive shared use of Subphase 1.1 Common Area. Any oral representations or modifications concerning this Agreement shall be of no force and effect excepting a subsequent modification made in writing. 9. Arbitration of Disputes. In the event of a dispute between the Parties and/or any of their successors relating to their respective rights and duties under, or the interpretation of, this Agreement, any such Party may cause the same to be referred to binding arbitration in San Diego County, California, to be administered by, and to be in accordance with the then prevailing commercial rules of, the American Arbitration Association. The decision of the arbitrator in this matter shall be final and conclusive upon the issue or issues in question. The arbitrator may include in his, her, or their decision an award for costs and/or attorneys' fees in favor of the prevailing Party or Parties against any one or more of the other Parties to the arbitration. 10. Attorneys' Fees. In the event of any controversy, claim, or dispute relating to this Agreement, the prevailing Party shall be entitled to recover from the losing Party or Parties such prevailing Party's reasonable expenses, attorneys' fees and costs. 11. Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of, the Parties, and all successors and assigns of each of them. -5- 4838-6669-1389.4 12. Subordination; Effect of Breach of Agreement on Lien of Mortgage or Deed of Trust. Any lien granted, obtained, held or recorded to or by a party pursuant to any proviSions of this Agreement against any of the Properties which are the subject of this Agreement shall be junior and subordinate to all mortgages and deeds of trust made in good faith and for value and which are now or hereafter constituted as an encumbrance upon a Property or any portion thereof. Except as provided in the immediately preceding sentence, all of the shared use rights, covenants, and other provisions contained in this Agreement shall be deemed superior to all mortgages and deeds of trust made in good faith and for value hereafter constituted as an encumbrance upon the Properties or any portion or estate thereof. The breach of or the attempt to breach any of the shared use rights, covenants or other provisions contained herein shall not defeat, affect, or render invalid a lien or charge of any such mortgage or deed of trust made in good faith and for valuable consideration; provided, however, that all such shared use rights, covenants, and other provisions shall remain in full force and effect, as herein provided, notwithstanding the foreclosure and subsequent foreclosure sale of any mortgage or deed of trust which shall hereafter constitute an encumbrance upon the Properties or any portion or estate thereof. No party acquiring title to any Property pursuant to any such foreclosure sale shall have liability for damages or otherwise related to any breach occurring prior to such foreclosure sale or for any unpaid liens, assessments or other amounts pertaining to the period prior to such sale, but shall be subject to curing, within a reasonable time period following acquisition of title, any non-monetary default still continuing after the occurrence of such foreclosure sale and which is reasonably susceptible of cure. Acceptance of a deed in lieu of foreclosure shall be deemed equivalent to the completion of a foreclosure sale for purposes of the foregoing provisions. 13. Estoooel Certificates. Within twenty (20) days following receipt of written request therefore, the requesting Party shall deliver to the other Parties or to any mortgagee or prospective mortgagee an estoppel certificate stating as of the date of such certificate whether the requesting Party has knowledge (a) of any default under this Agreement (and if there are any defaults, specifying the nature thereof) and the date thereof; (b) of any modification or amendment in any way of this Agreement (and if it has, then stating the date and nature thereof); (c) that this Agreement is in full force and effect: and (d) such other matters as may be reasonably requested. Such statement may be relied upon by the addressee of the estoppel certificate. 14. Liens. If any mechanic's lien or similar lien is filed against the Subphase 1.1 Common Area as a result of services performed (or alleged to have been performed) or materials furnished (or alleged to have been furnished) for the use of or by responsible Party, the responsible Party shall cause such lien to be discharged of record within sixty (60) days after receipt of notice of the existence of such lien, either by payment, bonding or other lawful manner. MarBrisa HOA shall pay or cause to be paid all real estate taxes and assessments applicable to the Subphase 1.1 Common Area prior to delinquency and shall keep the Subphase 1.1 Common Area free of any liens for taxes. Subject to the foregoing, nothing herein shall prevent MarBrisa HOA from contesting the validity of any such lien. 15. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. -6- 4838-6669-1389.4 Parcel A Owner Approved as to form and legality: Celia Brewer, City Attorney Approved as to form and legality: ~ Celia Brewer, City Attorney City of Carlsbad, a Ca · o ia municipal corporation By:_~t£--~t------;,1-L---------- Name: Kevi a ford Title: City Manager Attest: . ~l (L(OJL.-...--Y\1) Barbara\E.ngelson, City ClerkD (Seal) istrict, a California By:-+~--*',L-..:.:....__ _____ _ Name: Title: Executive Manager Attest:~-~ Barbara gelson, City Clerk: (Seal) [SIGNATURES CONTINUE ON FOLLOWING PAGE] 4838-6669-1389.4 [Signature page to Agreement for Shared Access and Use of Sub phase 1.1 Common Area} Parcel B Owner Approved as to form and legality: C2e~--- Celia Brewer, City Attorney Parcel A Tenant Parcel B Tenant rnia municipal By:_---"2lw----=~H--------- Name: Kevin C ord Title: City Manager (Seal) Grand Pacific Carlsbad Hotel, L.P., a Delaware limited partnership By: Grand Pacific Carlsbad Hotel, Inc., a Delaware corporation · General Partner By:~~~~.s;z.:.~~=~-- David S. Brown, Co-President GRAND PACIFIC CARLSBAD, L.P ., a California limited partnership By: Grand Pacific Development, Inc., a California corporation, its General Partner [SIGNATURES CONTINUE ON FOLLOWING PAGE] 4838-6669-1389.4 {Signature page to Agreement for Shared Access and Use ofSubphase 1.1 Common Area} MarBrisa HOA 4838-6669-1389.4 GRAND PACIFIC MARBRISA OWNERS ASSOCIATION, INC., a California corporation {Signature page to Agreement for Shared Access and Use of Subphase 1.1 Common Area} 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. COUNTY OF SAN DIEGO ) On I'?Jt~ 'Dt~ , 2016, before me, ~H_[)_f_.l_t~---+-=----'----------1--.---~l"h-----'----:--- a Notary Public in and for said State, personally appeared --1-L!-~..!..!....:-4--~~+-'-''+-=:....._-- who proved to me on the basis of satisfactory evidence to be the person(s whose na e(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. Signature • ~ 01\/ (Seal) 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. COUNTY OF SAN DIEGO ) On \/);)t \1\ \)t~ · , 2016, before me, H L\ Y; ~~ ------------~~~~~~~~~~----a Notary Public in and for said State, personally appeared nN\J V) 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. Signature ofttaot~&'M~ 4838-6669-1389.4 (Seal) 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. COUNTY OF SAN DIEGO ) On \'>Jt\Jl 1)'(;~4 ,2016,beforeme, Hl\t~t~ ~~~------~~~ .. --~~T-~=-----a Notary Public in and for said State, personally appeared fl 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. Signature ~~ (Seal) 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. COUNTY OF SAN DIEGO ) On I'J:>t ~ 1) \lt , 2016, before me, ______. ____ ______.--=c... __ -±---~t--~---->T~..--::-c-=-.,.....-:;:,------- a Notary Public in and for said State, personally appeared \ r()W V) 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. Signature ~~~ (Seal) 4838-6669-1389.4 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. COUNTY OF SAN DIEGO ) On l~t\n Dt~ ' 2016, before me, (). r i i~ --~--~----+-~~;-~~--~--------a Notary Public in and for said State, personally appeared fO)\) V1 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. Signature~ MARITES BOREMAN ~ Commission# 2128780 ~ ~ ·• Notary Public -California ~ z San Diego County ~ ). ;·: ~· • .MJ 8ozur·Jxgi~s.O;tJ}O)~Leal) 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. COUNTY OF SAN DIEGO ) On l~t\n ]t~ · , 2016, before me, ---'---~{A--'----{ ;_1_-t&_-+--v...=-:--:-----.----.--~---- a Notary Public in and for said State, personally appeared -.....L.1!""!-!:.....=:..--lo:=:l£....Jt..C..lo::....._ ____ _ 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. Signature£.~ll!-lrffi:t0~vY1~~?!..:.::::=:______;~~~~~M~A~R~IT~ES~B:rio~RE~MMAjtN-,Seal) • commission# 2128780 z :{ : .,; Notary Public -California ~ ~ • san Diego County f ). ;·~ ·~ • .MJ goQ'T·Jxgi~s,ogt}]!(J:I! 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. COUNTY OF SAN DIEGO ) On j) £.C Cfi,{ r,£YL I_ 3 , 2016, before me, S 1/-i:. 'tL .• l~-f4 l:D 8 t A-/\1 )lt)r(ttz y fv B tJ C , a Notary Public in and for said State, personally appeared k..evt N ( fZ4i'vRJl' /'") who proved to me on the basis of satisfactory evidence to be the person(~ whose nameE&G)are subscribed to the within instrument and acknowledged,J_o me that @Jhe/they executed the same in his/her/their authorized capacityt~ and that byQi[sftkr/their signatur~ on the instrument, the person(-sf, 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. Signature ______________ _ (Seal) 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. COUNTY OF SAN DIEGO ) On , 2016, before me, _________________ _ a Notary Public in and for said State, personally appeared ____________ _ 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. Signature ______________ _ (Seal) 4838-6669-1389.4 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. COUNTY OF SAN DIEGO ) On PEcCU{/X~ t3 , 2016, before me, 5Ht:-~e.A-if!.. (oi3£Aflv N(.•/ln~v Pt-if;LiC , a Notary Public in and for said State, personally appeared jL_(;V IN (J?AW rr)e-() who proved to me on the basis of satisfactory evidence to be the p_e~son(sJ"Whose name(-sm/are- subs~ribed to the within instrument and acknowledged to me tha~/ttrey executed the same in ~erftheir authorized capacity.(ies), and that by his/her/their signaturefst on the instrument, the person(~or the entity upon behalf of which the personfst-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. SHEILA R. COBIAN WITNESS my hand and official seal. Signature~ \) ,._:9--1<_, c~ c Commission # 2020389 z < -Notary Public -California ~ i · · . san Diego County 1 ... J. o • • o oMl toTm,~,x:r; :•Ilo}~1 ~ 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. COUNTY OF SAN DIEGO ) On , 2016, before me, _________________ _ a Notary Public in and for said State, personally appeared ____________ _ 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. Signature ______________ _ (Seal) 4838-6669-1389 4 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. COUNTY OF SAN DIEGO ) On~· 1:":2 , 2016, before me, __._,~~4-l-'.........._----""':~~!"-"-'-¥."""=+-----,......-rr---r+-- a Notary Public in and for said State, personally appeared ---''---\-'"""""ll...l--'-+'"-' ......... >o..:;..;~~"';ooE:,-- who proved to me on the basis of satisfactory evidence to be the person(s}whose nam i at'e' subscribed to the within instrument and acknowledge>l_to me that he/she/they executed the same in his/her/their authorized capacity~ and that b(l!ID'herftheit ~ignature(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. SH~ILA R. COBIAN WITNESS my hand and official seal. Signature -~ 2 Cw- _ Commission # 2020389 ~ ._ . Notary Public • California z ) · . San Diego County ~ • • • o o ,Ml t't!,alj~r~ ~al 1°}~1 [I 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. COUNTY OF SAN DIEGO ) On , 2016, before me, ------------------------------------ a Notary Public in and for said State, personally appeared ------------------------- 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. Signature ____________________________ _ (Seal) 4838-6669-1389.4 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. COUNTY OF SAN DIEGO ) onk. 13.' ,20l6,beforeme, ~0~ lr.~Cob\~ a Notary Public in and for said State, personally appearedjv I QGJaT).I(} who proved to me on the basis of satisfactory evidence to be the personfsr whose namefsxtWlt=@-- subscribed to the within instrument and acknowledged to me tha@sbeftftey executed the same in ~r authorized capacity~and that by ~b.erltbeir 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. 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. COUNTY OF SAN DIEGO ) On , 2016, before me, _________________ _ a Notary Public in and for said State, personally appeared ____________ _ 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. Signature ______________ _ (Seal) 4838-6669-1389.4 CONSENT, JOINDER AND SUBORDINATION OF LENDER The undersigned, as the beneficiary under that certain Construction Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents, Proceeds and Agreements (A&D Deed of Trust) dated April22, 2013 and recorded on April23, 2013 as Instrument No. 2013-0251471 ("ZB DOT"), which deed of trust encumbers the Subphase 1.1 Common Area (as defined in the Agreement for Shared Access and Use of Subphase 1.1 Common Area ("Agreement")) to which this Consent, Joinder and Subordination is attached (the "Subject Property") hereby (i) consents to the Agreement, (ii) agrees that its interest in the Subject Property (including its interest in the Subject Property pursuant to the ZB DOT) shall be subject and subordinate to the terms and provisions of the shared use rights, covenants, and other provisions contained in the Agreement, and (iii) joins in the grant and any reservation of shared use rights set forth in the Agreement to the extent of its interest in the Subject Property and to the extent such shared use rights are in, over or upon any portion of the Subject Property. 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 ARIZONA ) ) ss. COUNTY OF MARICOPA ) On IJ.. -I-~I /p , before me,~+~ , a Notary Public in and for said state, personally appeared K ~ =Y,erlb , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. 4R1R-nnn9-11R9 1 JANET RAY Notal}' Public -State of Arizona MARICOPA COUNTY My CommissiOn Expires October 14,2020 (SEAL) -6- EXHIBIT "A" LEGAL DESCRIPTION OF PARCEL A (APN 211-023-07 and portion of APN 212-271-02) THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL A OF THAT CERTAIN CERTIFICATE OF CO~LIANCE FOR ADJUSTMENT PLAT (ADJ 16-08) RECORDED DECEMBER \7._ _, /'S , 2016, AS DOCUMENT NO. 2016-Ob'6~ I (:;.I OF OFFICIAL RECORDS OF SAN DIEGO COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS F AND H OF RANCHO AGUA HEDIONDA, ACCORDING TO PARTITION MAP NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896 AND A PORTION OF LOT 9 OF CITY OF CARLSBAD CT 09-03, ACCORDING TO MAP THEREOF NO. 15902, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 4, 2013, BOTH IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF THE SAID LOT 9; THENCE ALONG THE WESTERLY LINE OF SAID LOT 9, NORTH 00°04'15" EAST, A DISTANCE OF 110.04 FEET TO SOUTHEAST CORNER OF SAID LOT F, THE NEXT THREE (3) COURSES BEING ALONG THE BOUNDARY LINES OF SAID LOT F; THENCE NORTH 89°55'45" WEST, A DISTANCE OF 120.00 FEET TO THE SOUTHWEST CORNER OF SAID LOT F; THENCE NORTH 00°04'15" EAST, A DISTANCE OF 160.00 FEET TO THE NORTHWEST CORNER OF SAID LOT F; THENCE SOUTH 89°55'45" EAST, A DISTANCE OF 120.00 FEET TO THE NORTHEAST CORNER OF SAID LOT F, SAID POINT ALSO BEING ON THE WESTERLY LINE OF SAID LOT 9; THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT 9, NORTH 00°04'15" EAST, A DISTANCE OF 181.30 FEET TO THE NORTHWEST CORNER; THENCE LEAVING SAID NORTHWEST CORNER AND ALONG THE NORTHERLY LINE OF SAID LOT 9, NORTH 79°29'29" EAST, A DISTANCE OF 122.80 FEET; THENCE LEAVING SAID NORTHERLY LINE, SOUTH 12°39'48" WEST, A DISTANCE OF 195.66 FEET; 4838-6669-1389.4 EXHIBIT "A" -1- THENCE SOUTH 44°59'43" EAST, A DISTANCE OF 135.72 FEET; THENCE SOUTH 45°00'17" WEST, A DISTANCE OF 134.38 FEET; THENCE SOUTH 00°00'17" WEST, A DISTANCE OF 65.23 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID LOT 9; THENCE WESTERLY ALONG SAID SOUTHERLY LINE, SOUTH 71 °27'08" WEST, A DISTANCE OF 83.68 FEET TO THE POINT OF BEGINNING. APN 211-023-07 AND APN 212-271-02 (PORTION) 4838-6669-1389.4 EXHIBIT "A" -2- EXHIBIT "B" LEGAL DESCRIPTION OF PARCEL B (APN 212-271-02) THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL BAS SHOWN ON BOUNDARY ADJUSTMENT ADJ 16-08, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, PER CERTIFICATE OF COMPLIANCE FILEJ?--IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON 14--f~ , 2016 AS FILE NO. 2016-bb'a'a~ffl , MORE PARTICULARLY DESCRIBED AS FOLLOWS: PORTION OF LOT 9 OF CITY OF CARLSBAD CT 09-03, ACCORDING TO MAP THEREOF NO. 15902, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 4, 2013, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A MOST EASTERLY CORNER OF SAID LOT 9; THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 9, SOUTH 71 °27'08" WEST, A DISTANCE OF 335.73 FEET; THENCE LEAVING SAID SOUTHERLY LINE, NORTH 00°00'17" EAST, A DISTANCE OF 65.23 FEET; THENCE NORTH 45°00'17" EAST, A DISTANCE OF 134.38 FEET; THENCE NORTH 44°59'43" WEST, A DISTANCE OF 135.72 FEET; THENCE NORTH 12°39'48" EAST, A DISTANCE OF 195.66 FEET TO A POINT ON THE NORTHERLY LINE OF SAID LOT 9, THE NEXT FOUR (4) COURSES BEING ALONG THE BOUNDARY LINES SAID LOT 9; THENCE NORTH 79°29'29" EAST, A DISTANCE OF 31.07 FEET TO THE BEGINNING OF A 476.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL TO SAID POINT BEARS SOUTH 69°29'20" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30°52'42", AN ARC LENGTH OF 256.53 FEET; THENCE NON-TANGENT TO SAID CURVE, SOUTH 43° 27'01" EAST, A DISTANCE OF 54.46 FEET; THENCE SOUTH 30° 26'52" EAST, A DISTANCE OF 117.49 FEET TO THE POINT OF BEGINNING; CONTAINING 1.60 ACRES OR 69665.99 SQUARE FEET MORE OR LESS. 4838-6669-1389.4 EXHIBIT "B" -1- EXHIBIT "C" LEGAL DESCRIPTION OF SUBPHASE 1.1 COMMON AREA (APN 211-130-03-00) THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 10 OF CARLSBAD TRACT NO. 03-02, RECORDED AS MAP NO. 15332 ON MAY 3, 2006 AS FILE NO. 2006-0311804, RECORDED IN THE OFFICES OF THE COUNTY RECORDER, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOW AND AS SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART OF THIS DOCUMENT: BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 1 0; THENCE NORTH 71 °26'51" EAST A DISTANCE OF 353.09 FEET TO A POINT LYING ON THE 34 FOOT WESTERLY RIGHT OF WAY OF CROSSINGS DRIVE (FORMERLY HIDDEN VALLEY ROAD AS SHOWN ON SAID MAP); THENCE SOUTHERLY ALONG SAID WESTERLY RIGHT OF WAY SOUTH 01 °54'08" WEST A DISTANCE OF 41.03 FEET; THENCE LEAVING SAID WESTERLY RIGHT OF WAY SOUTH 65°27'25" WEST A DISTANCE OF 320.14 FEET; THENCE NORTH 34°22'17" WEST A DISTANCE OF 74.68 FEET TO THE POINT OF BEGINNING. CONTAINING 18,565.57 SQUARE FEET MORE OR LESS. 4838-6669-1389.4 Exhibit "C" -1- 0 ) ~---------1 I ", I I ' I I ' ' I P.O.B / I I I EXHIBIT "8" SHEET 1 OF 1 SHEETS SCALE !" = !00 P. 0.8 = POINT OF BEGINNING - I ...--I __. :J~o.14' I I I 5•2tzs'l. EASEMENT REco.JoEo I N6 AS DOCUMENT I #1961-9570 RECORDED JANUARY 16, 1961. I -vst:ttl ), I J I ~A~~ ·\~ I ( \.J)~ / I I I \__/// I~ I t-•t \~ I~ I I EXCEL ENGINEERING #0 STATE PLACE E.5'CONOUJa Of 92029 PHONE (750) 7-15-8118 !00 200 ~u I I~ I~ I I~' I I e3 I I I ---------~ I DATA TABLE NO. BRNC/DEL TA RADIUS LENGTH L! N0!"54'o8"E L2 NJ472'!7nW 4/.0J' 74.68' EXHIBIT "C-1" DIAGRAM OF SUBPHASE 1.1 COMMON AREA ' ' ' I I I PtJ.B. --I -----0 100 .700 4838-6669-1389.4 I 5'CAL£ J. = /{;(} ~ !-'. 0. iJ. = f"O'Ni t OF 8£C.INNIIIC NO BRNG/!JEL TA RADIUS LENG!H L! NO! '54 '08"E 4!. OJ' L2 NJ4"22'!7"W N.6JJ' EXHIBIT 11 C-1 11 -1- ~ ~ ..:.: ..... ~ ~ ~ ~ ~ ~ <:; ~ ~ s::J ~ ~ "' ~ ., ~ ~ ~ ~ ~ ~ ,l2 ., ~ ;!j ~ ~ -~ <s; ~ S\ -...; ~ -<'::; L 7 . ·z P/l '--......_ LOT 11 IIAP 15.J.J2 I LOT 1 IIAP 15.J.J2 RFJ.tov!'arsr.-·\·· ...- WATFR VALlE PIL / LOT16 """' .---I ' IIAP 15.J.J2 "-? LOT9 CARt.S8AO TRACT 09-0J IIAP M2 15902 ··/pjL ,R£1.101£ EXIST. _.... q_·~, BO!.LAROS J FA _ ~----. '•:-. .. ;(t; ./ ~/~-' LOTIO ~ IIAP 15.J.J2 CUT ANO INSTALL EM CAPANO THRUST BLOCK PER CARLSBAD STANOARO W-15 ..... IL.--l..-·· I I EXIST. 16"PVCH.P WA!FR~.0 .. /· P1· ;-,_··. ~,,.\ ..-"" __ -__ ·. PER owe JJJ-2v...-_. · · • f R£1.101£/ ABANDON IN " _.-...-.-·. 1 PLAlf APPRoy5o LF _. _... /" · •• ~ ~ I . ... 1 (o .• SHUT VAL IE ON EXIST. 12"_/. •, i I RFCLAI/.1£0 WA lFR LIN£ I ~ ./ 1 LOT 10 I / IS ./ IIAP 15.J.J2 ~ -... -~: ~ ~ FXIST./2" I £XIST. 1 ,j._/ I ~ I RFCLAI/.1£0 WA lFR PI'C H.P -FXIfT. WA!ER 16 PVC ,,_-~·.,"' EXIST. 12" PI'C RFCLAIJ.IElJ WA!FR I I ~ I if!& -----ro t-4 ~ qJ "f ~ 3 c 1'\ ~ ~ ~ eJ D c.- ~ \::? \ ~ \._../ ~ PER OHC JJJ-2V R£1.101£/ ABANDON IN PLACE APPROX J40 LF ---I--0 40 80 !20 !60 EXHIBIT-LOT 10 WATERLINE DEMOLITION LIMITS LOT 9 DEVELOPMENT WATER TANK £::" ~ ~ ~ r 14 z. ~~ v') ~ ~ w '--4 -l ~ 0 ) f'J ' ' CERTIFICATION FOR ACCEPTANCE OF AGREEMENT FOR SHARED ACCESS AND USE OF SUBPHASE 1.1 COMMON AREA (City of Carlsbad and CMWD) This is to certify that the interest in real property conveyed by the agreement dated December 13, 2016, from Grand Pacific Carlsbad Hotel, L.P., a Delaware limited partnership, and from Grand Pacific Carlsbad, L.P., a California limited partnership, and from Grand Pacific Marbrisa Owners Association, a California non-profit mutual benefit corporation, to the City of Carlsbad, California, a municipal corporation, and to the Carlsbad Municipal Water District, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, is hereby accepted by the City Council of the City of Carlsbad, California, and by the Board of Directors of the Carlsbad Municipal Water District, California, and the grantee consents to the recordation thereof by its duly authorized officer. DATED: December 13, 2016 {SEAL)