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HomeMy WebLinkAboutCT 85-35; Aviara Land Associates/WNH Aviara Partners Ltd; 1994-0329420; Unity of Control Assumption Agreement~flmTED8Ymum~ 18-MY-1994 cJ3=1!3 WI 1131 RECORDING REQUESTED BY OFFIfIAL RECORDS AND WHEN RECORDED RETURN TO: SAI? DIEGO GDUHTY RECORDER’S OFFICE MEGORY fr%ITFi 3 I’DUMTY NE!JXDER City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008 RF: 17.00 FEES: 47.00 CIF: 29.00 RF: 1.00 --------SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY-------- ASSUMPTION AGREEMENT (FOR UNITY OF CONTROL AGREEMENT) THIS ASSUMPTION AGREEMENT (the 18Agreementn) is made as of May 12, 1994, by and between AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("Aviara"), and WNH AVIARA PARTNERS, LTD., A California Limited Partnership ("Purchaser"), with reference to the following facts: A. Aviara is the master developer of the Aviara master- planned community located in the City of Carlsbad, State of California. B. Aviara and certain purchasers of reai property located within the Aviara master-planned community have executed and recorded that certain Unity of Control Agreement attached hereto as Exhibit 18Af1 (the "Unity of Control Agreement"). c. Purchaser has purchased from SBS Realty, a California corporation, a portion (%ot 92") of the real property located in the Aviara master-planned community, which portion is described in the attached Exhibit m@B*l, and has also purchased an option to purchase a separate portion ("Lot 93") of said community, which portion is also described in the attached Exhibit lmBpg For purposes of this Agreement, the "Property" shall mean Lot 92, and, if said option is exercised, then beginning at such time that Purchaser acquires title to Lot 93, the Property shall include Lot 93. D. By executing this Agreement, Purchaser is assuming and agreeing to be bound by the terms and conditions of the Unity of Control Agreement with reference to Purchaser's use and development of the Property. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: KU076143LDT4 050594 -l- UVIARmREA 7l 051094 . ,.;. . : A,- .- 1132 1. Acknowledgment and Assumntion Purchaser acknowledges that Purchaser has received and-reviewed the Unity of Control Agreement, and Purchaser hereby assumes and agrees to be bound by its terms and conditions with reference to Purchaser's use and development of the Property. 2. Exhibits. All exhibits to which reference is made in this Agreement are deemed to be incorporated herein by each reference as if fully set forth. 3. Counternarts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land Company, a Delaware eneral Partner . . KU076143U.DT4 0505% . BY J VI%% fw,h [Printed Name and Title] By: Republic Development Company, a California corporation, General [Printed Name and Title] -2- tAVIARA/AREA 71 051OV4 -- CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT - STATE OF CALIFORNIA ) . / -COUNTY OFJ&7 ) I /9?7Gefore me, NAME, TITLE OF OFFICER - E.G., “JANE DOE, NOTARY PUBLIC” , personally appeared, personally known to me J . (c o be the person(e) whose name(e) is/are subscribed to the within instrument and acknowledged to me that he/sb&,bey executed the same in his/h&#& authorized capacity-), and that by his/ber%eir signature@ on the instrument the person(e), or the entity upon behalf of which the person&j acted, executed the instrument. WITNESS my hand and .official seal. (SEAL) TITLE OR TYPE OF DOCUMEN ’ DATEOFDOCUMENT - SIGNER(S) OTHER THAN NAMED ABOVE c .- . .:. ,: : ’ : * *:v 1.134 WNH AVIARA PARTNERS, LTD., A California Limited Partnership By: Western National Homes, a California corporation, General Partner BY [Printed Name and Title] BY [Printed Name and Title] AfiDAS TO FORM: KU07614W.DT4 050594 -3- UVIARAMREA 71 051094 . ‘,, ::. .*’ WNH AVIARA PARTNERS, LTD., A California Limited Partnership LT?Rct 4, LuknwY?L/Ic4 -LA w l%uq;4&r [Printed Name and' Titlej' APPROVED AS TO FORM: Ronald R. Ball, City Attorney KU076143bLDT4 0505% -30 CAVlARAmEA 7l 051094 ’ I ,.;, - STATE OF CALIFORNIA COUNTY OF O?WOGK iss. On MA--Y /6, I%* before me, ?&if/@if3, & P&3 3, iw73w Pit&c personally appeared /ulA r7-m Lx%-ooD /+ALD ! &*I& A. coui-zzii~~ personally known to me (e++eved 3) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowtedged to me that h&&e/they executed the same in -r/their authorized capacity(ies), and that by &&i?e.r/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. Signature (lhjs area for official notarial sea!) _ . .. - -;- .3 _ _ 9 .’ 1 LQ - . ‘1 I I f i ! I t 1! L ’ 1138 90 204778 RECORDING REQUESTED BP AND XHEN RECORDED MAIL TO: ?ltOll TlTiE ~;:~ij:;s:~ ce:gi,-:f CP fx.%XlWH ?W’Wt, FM2:45 - -- CITY OF CARLSBAD ' / 7. r, /. { . -- I 1200 Elm Avenue 1 i I r, [,!jY ; f :.-f :,;j;. :, : La ; - I Car&&d, California 92008 -- -*I Attn: Ronald R. Bail, Esq. 1 - ) THIS Sp.?,CE'FOR RECORDER'S USE CNL _.-- UNITY 3? CONTROL AGREEMENT -- THIS UNITY OF CONTROL AGREEMENT (the "Agreement") is entered into as of February 20, 1990, by and among AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("Aviara"); DAVIDSON COSCAN PARTNERS, a California general partnership ("Davidson"): LYON COMMUNITIES, INC., a California corporation (ItLyon"); RDC DEVCO II LIMITED PARTNERSHIP, a Delaware limited partnership ("RDC"); A-M HOMES, a California Limited Partnership ("A-M"); and BRAMALEA CALIFORNIA, INC., a California corporation ("Bramalea"). All of the parties identified above may hereinafter be referred to collectively as "the Owners" or "the parties". This Agreement is entered into with reference to the following facts: A. All of the Owners own real property located in that certain master-planned community located in the City of Carlsbad (the "City") and known as "Aviara" (hereinafter referred to as the "Project"). As of the date of this Agreement, Aviara is the owner in fee simple of that certain real property shown in the attached Exhibit "A". Aviara has conveyed the following properties within the Project to the following parties: To Davidson: Real property identified in Exhibit "B"; To Lyon: Real property identified in Exhibit "C"; To RDC: Real property identified in Exhibit rD"; To A-M: Real property identified in Exhibit "E"; To Bramalea: Real property identified in Exhibit "F". B. On December 22, 1987, the City Cotlncil of the City adopted Resolution No. 9322, approving, among other things (i) the tentative subdivision map relating to the development of the Project (tha "Tentative Map"), and (ii) the Local Facilities Management Plan for Zone 19 of the City (the "Local Facilities- -- Management Plan"). EXHIBIT A JS~:hU131201.D1(2:022190 1 -.. -.--. . .__, - .-_- . _ _._. ___^_.. ” .- -.--.- -___,-_ ..“__ -_.-. .-. - . ..3 : - . ,) . 1139 ’ C. On December 22, 1987, the City Council GT: the Cg adopted Ordinance No. 9939, approviktg that certain Master Plan known as MP-177 (the of the Projsct. "Master Flsn") relating to the development D. On June 27, 1989, the City Council of the City approved by minute motion the recordation of the final subdivision map for Carlsbad Trsct No. 85-35 (the "Final Map"). E. The Owners desire to enter into this Agreement in satisfaction of the City's Ordinance No. 21.38.930 which provides, in pertinent part, as follows: “ilb) All land in each proposed planned community shall be held Ln one ownership or shall be under unified control unless otherwise authorized by the city council. For the purposes of this section, the written agreement of all owners in the planned community to develop in accord with the master plan as approved indicates unified control." NOW, THEREFORE, in consideration of the foregoing and the covenants, promises and undertakings hereinafter set forth, and the mutual benefits of each of the parties hereto, it is understood and agreed as follows: 1. Compliance with ADDrOVa>. The Owners hereby acknowlrdgs that the development of their respecti.;e properties is subject to the terms and conditions set forth in the Master Plan, the Local Facilities Management Plan, the Tentative Map and the Final Map. Each of the Owners has reviewed the contents of the foregoing approvals by the City and acknowledges that (i) the development of property within the Project shall be performed in compliance with the foregoing approvals and (ii) the failure to satisfy the terms and conditions of the foregoing approvals may delay or prevent development of property within the Project. 2. Restrictions Upon Development in PlannincQreas 3. 5, 5 and 2. RDC, as the current owner of Planning Areas 3 and 4 of the Projec %I and Aviara, as the current owner of Planning Areas 5,and-G f the Project, hereby acknowledge that the above-referenced Planning Areas may not be developed until the necessary downstream sewer facilities satisfactory to the City Engineer are installed 0 se &7* ??r- aid Cl)' K@JT O\J.JE& 0 6 p&AlwdG- A Planning Areas.* LYO~~AS 3. Subseauent T an-fers of Prooerty. The Owners hereby agree, each with the other, that should any party to th- Agreement sell all or any portion of its property within the Project, any such selling party shall cause this Agreement to be identified to the purchaser and shall cause such purchaser to execute a written acknowledgement of the restrictions and obligations set forth herein; provided, however, no such written 2 EXHIBIT A acknowledgement shall be required for purchasers of fewer than five residential lots within the Project. 4. No Aoencv The parties herato acknowledge that none Of the parties shuli be deemed to be the agent of any other party as 8 result of executing this Agreement. s Bindine Effect. This Agreement shall inure benefit of-kd bebinding upon the parties hereto and their to the rcsp~cti-*T~ ~rtPPm*c7r\ra 3-A =*a4 "a- ---------- -we.. u-r-y*..=. 6. Exhibits. All exhibits to which reference is made In this Agreement are deemed to be incorporated i:erein by each reference as if fully sa,t forth. 7. Counterparts. any number of counterparts, This Agreement may be executed in each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 8. Citv AoDroval. By executing Lhs Agreement on the signature page hereof, the City approves this Agreement as to form and content. XN WITiiESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. [Signatures continued] "OWNERS" AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By' ~~~~tifii ~a~~~~~are By: 316 1. /tke+-- up& Rcsf. h-y. By: Republic Development Company, a orporation, General By: vt e c )J.'TLS~ Jc bl t By: cr DAVIDSON COSCAN PARTNERS, a California general partnership By: By: 3 EXHIBIT A -- - - - .- . _ __.-_- --p.---y-L-‘“’ > ____--- *._ __ .._._ p. -. ._ -, * ..1 . 7 ‘?? -----_.- --- ---.-.. . ,. M.. . .’ -3: -.. -- .-? ----... .y.- -; or I ,; : .’ \’ 5 . I. . , .- _ I’ ‘, & ? I..::_,. -a... > ;. - - : . ;. r141i.~ ‘, * -:-’ f‘ .’ I .&g?jEyz- acknowledgeme;lt shall be requir:6d for purchasers of fewer than five residential lots within the Project. 4. No Aaency The parties hereto acknowledge that none of the parties shali be deemed to be the agent of any other party as a result of executing this Agreement. 5. Binding Ef feet. This Agreement shall inure to the benefit of and be binding upon the partiss hereto and their respectivs successors and assigns. 5, Exhibit-. All exhibits to which reference is made in this Agreement are deemed to ba incorporated hl:?rein by each reference as if fully set forth, 7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. 8. atv ADQroval. By executing the Agreement on the signature page hereof, the City approves this Agreement as to form and content. IN WITNESS WHEREOF, the parties hereto have execut Z! this Agreement as of the day and year first set forth above. . "OWNERS" AVXARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: 1: By: By: Republic Development Company, a California pz rporation, General --7< 1 By: d==+-+ ,tk? w By: Irr -- DAVIDSON COSCAN PARTNERS, a California general partnership The Davidson Company, [Signatures continued] r EXHIBIT A t ..I ..i ‘: Y f:; i I : i I i 1 i I : ;/ .I Ij 1, 1 i , j ! ‘. i ..? 1 ,L. /;: 1 1:: 1 2::: L’-+? . . ‘: .< ( ~ 1 -, f, 4 .’ .._ :. :;.j ‘ .,:* .: ;:J z . . ..‘) 4 ,. ,.., .. .--.- _... . . .._ ..,, fl. .._a. C.” L’ * ” -- ; .&r’ T I . .‘. , > . ‘i 1. . - sy . . . . _ .:,. ; rr i_ -- : -- .-.., I .r-.- :__ _‘..2 . .- :’ -: :.-?i.*-& . . . . . g..~:: s- -- 6 ; i’. ;. By: Ronald R. Ball, Assistant City Attorney LYON COMMUNITIES, INC., 8 Callfcmia corporation By: By: --a -- A-M HOMES, a California Limited Partnership By: By: BRAMALEA CALIFORNIA, INC., a California corporation By: By: APPROVED AS TO FORM: Vincent F. Biondo, Jr., City Attorney 4 EXHIBtJ A . , i i I cl3 z :i * 1 ; . El . . I i I , 1 I /:, ;s ig 12 . + c f. - .” .’ LMK:pjb 08/l -- 9 LMK1161.0001.0.0 e- 1 Planning Area 7 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: LOTS 92 AND 93 OF THE CITY OF CARLSBAD TRACT 85-35 AVIARA PHASE I UNIT C, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAF THEREOF, NO. 12411, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 29, 1989. -- .