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MP 02-03; ; 2007-0066979; Property
ORIGINAL DOC# 2007-0066979 RECORDING REQUESTED BY: ) ) WHEN RECORDED MAIL TO: ) City Clerk CITY OF CARLSBAD 1 200 Carlsbad Village Drive Carlsbad, CA 92008 JAN 31,2007 9:51 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY,!. SMITH. COUNTY RECORDER FEES: 0.00 PAGES: 75 Space above this line for Recorder's use. PARKLAND AGREEMENT FOR THE ROBERTSON RANCH MASTER PLAN This Parkland Agreement for the Robertson Ranch Master Plan ("Agreement") is made this 27th day of October, 2006, between the City of Carlsbad, a Municipal Corporation ("City"), Gary Robertson and Brian Robertson as co-successor trustees of the Robertson Family 1995 Trust, dated April 19, 1995 as to an undivided one-half interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of Trust dated October 8, 1976, as to an undivided 7% interest; and Gary Robertson and Brian Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June 19, 1989 as to an undivided 43% interest (collectively "Robertson Trust"), and Calavera Hills II, LLC, a California Limited Liability Company ("Calavera") with regard to the following: RECITALS A. Robertson Trust is the owner of the real property generally located at the northeast corner of El Camino Real and Cannon Road and more particularly described in Exhibit "A" ("West Village"). Robertson Trust was the owner of the adjacent real property ("East Village") (also more particularly described in Exhibit "A") and sold the East Village to Calavera. Calavera intends to develop portions of the East Village for primarily residential purposes. Robertson Trust, or its successors, intend to develop portions of the West Village for residential and other uses. B. For purposes of this Agreement, Robertson Ranch consists of the following: 1) The East Village of the Robertson Ranch Master Plan which includes approximately 178 acres in Zone 14. This project is pending approval of the Master Tentative Tract Map for mass grading and associated backbone infrastructure improvements, among other things. 2) The West Village of the Robertson Ranch Master Plan which consists of approximately 220 acres within Zone 14. City Council Special Meeting, October 30,2006 504201.2 APN 208-010-36 C. In addition to the City's Growth Management Program and implementing ordinances, the City has adopted the Quimby Act requirement for park land dedication, or the payment of fees-in-lieu thereof, in connection with Final Subdivision Maps. The ratio of parkland required under the City's applicable ordinances and policies is 3.0 acres per 1,000 population (calculated at the rate of 2.61 persons per single family detached unit and 2.11 persons per attached multi-family unit), which dedication or payment of park fees-in-lieu thereof is required as a condition of Final Subdivision Map approval. The City Council has required that the Robertson Ranch fulfill its park requirement in its entirety by a dedication of land in Planning Area ("PA") 12 as shown on Exhibit B. NOW, THEREFORE, incorporating the foregoing recitals of facts set forth above and in consideration of the mutual covenants, conditions and obligations contained herein, the parties agree to the following: 1. PARK REQUIREMENTS: ANTICIPATED BUILDOUT. Under the Parkland Dedication Requirements of three park acres per 1,000 population, the parkland required for estimated buildout densities for Robertson Ranch are as follows: East Village Density Projected Units Park Acreage Requirement Single Family 2.61 304 2.38 Attached Multi-Family 2.11 157 0.99 East Village Total 461 3.37 West Village Single Family 2.61 274 2.15 Attached Multi-Family 2.11 387 2.45 West Village Total 661 4.60 Robertson Ranch Total 1,122 7.97 Projected Units The "Projected Units" and associated calculation of "Park Acreage Requirement" identified above for Robertson Ranch (hereinafter "Park Requirement") are the parties' best current estimates, based on present development standards, anticipated densities and the total parkland requirement. The 1,122 Projected Units represent the number of units set forth on the proposed Master Plan. The Projected Units are based on current estimates given by the City's Growth Management Program, together with an allocation of 171 dwelling units from the City's excess Dwelling Unit Bank, topographic considerations, and consideration of the Habitat Management Plan for those areas. (If, for example, the City Council approves the Robertson Ranch Master Plan with 1,154 units rather than 1,122 units, then the Park Acreage Requirement will be for 8.23 net acres rather than 7.97 net acres.) 504201.2 1.1 COMPLIANCE. Subject to the provisions in Paragraph 2.3 below, the parties agree that an Irrevocable Offer of Dedication of 7.97 net acres of land will fully satisfy the Park Requirement for the Robertson Ranch once the dedication is accepted by the City. 1.2 NET ACREAGE. Net acreage is defined as gross acreage, excluding any land not developable due to (1) its location within the floodplain, (2) habitat preservation buffers (including lighting buffers required by the Wildlife Agencies or Army Corp of Engineers ("ACOE")) that prevent use of the property as a park, (3) rights of way, (4) slopes having more than a 10% grade or (5) any other restriction, including easements, which make a portion of the property undevelopable for park purposes; provided, however, the City shall not impose any unique or special restrictions or easements to make any portion of the property undevelopable for park purposes. 2.0 ROBERTSON RANCH PARK SITE; THE DEDICATED LAND. The Robertson Ranch Park site shall consist of 7.97 net acres to be dedicated to the City in satisfaction of the Robertson Ranch Park Requirement (plus an additional contiguous 5.53 to 5.93 net acres in PA 12 to be purchased by the City as shown on Exhibit "E", as further discussed in Paragraph 2.1 below). Subject to the provisions in Paragraph 2.3 below, the Robertson Trust hereby agrees to reserve (and irrevocably offer to dedicate pursuant to Section 2.2 below) 7.97 net acres within PA 12 (in the West Village). The park area to be dedicated is more particularly shown on the schematic drawing attached hereto as Exhibit "B" and is more fully set forth in the legal description attached hereto as Exhibit "C", both incorporated herein by this reference (hereinafter "Dedicated Land") as satisfaction of the Park Requirement for both East and West Village. 2.1 PURCHASE OF ADDITIONAL PARKLAND. The City and Robertson Trust agree that in addition to the Dedicated Land (that is, the acreage to be dedicated to satisfy the Master Plan Park Requirement), the City shall purchase an additional contiguous 5.53 to 5.93 net acres of land (the "Purchased Land") for its Park site on the terms set forth on the Parkland Purchase Agreement attached hereto as Exhibit "F" (the "Purchase Agreement"), for a total of 13.5 to 13.9 net acres in Planning Area 12 of the Master Plan (the Dedicated Land and the Purchased Land are hereinafter collectively referred to as the "Parkland"). If, due to new and unexpected requirements imposed by the Wildlife Agencies or the ACOE, the land in PA 12 (or PA 12 and PA 13) is not sufficient to accommodate 3 soccer fields and all the ancillary park amenities, including adequate setbacks, as shown on the Park Concept Plan (which is Exhibit "G" to this Agreement), the parties will mutually cooperate to initiate a Master Plan amendment to relocate the Park site elsewhere within the Master Plan on terms and conditions to be agreed on by the parties at such time. 2.2 IRREVOCABLE OFFER TO DEDICATION. Concurrently with recordation of the first Final Map for the Robertson Ranch Master Plan, the Robertson Trust shall execute and record an Irrevocable Offer of Dedication in accordance with Government Code Section 7050 in the form attached hereto marked Exhibit "D" incorporated herein by this reference, ("Park IQD") for fee title to the Dedicated Land. 504201.2 2.3 ADJUSTMENT OF PARK REQUIREMENT. The "Projected Units" and associated calculation of "Park Requirement" identified in the Section 1 table are the parties' best current estimates, and are subject to upward or downward adjustment as further planning is finalized based on the City Council's final approval of the Robertson Ranch Master Plan. The Robertson Trust, Calavera, and the City agree that should the density for the Robertson Ranch Master Plan approved by the City Council be less than the Projected Units, the Dedication Requirements shall be decreased accordingly and the City's purchase of land will increase by that same amount, on the same terms and conditions as set forth herein for the purchase of the Purchased Land. 2.4 PURCHASE OF BALANCE OF ROBERTSON RANCH PARKLAND. City intends to purchase the Purchased Land in accordance with the Purchase Agreement attached as Exhibit "F", for Seven Hundred Thirty Two Thousand dollars ($732,000) per net acre, which is the City's current Park-In-Lieu Fee established on June 25, 2005. The City shall remit to the Robertson Trust an all cash payment of Four Million Forty Seven Thousand Nine Hundred and Sixty Dollars ($4,047,960.00) for the 5.53 net acres, at close of escrow, subject to upward adjustment if the acreage exceeds such net acreage (in addition to the sum the City is obligated to pay to Robertson Trust for grading the Purchased Land, as described in paragraph 3.5 below). As noted in paragraph 2.3 above, if the current 1,122-unit density of Robertson Ranch is reduced, thereby reducing the acreage of the Dedicated Land, the acreage of the Purchased Land within PA 12 and PA 13 if necessary, will increase by the same amount and the City will pay Seven Hundred Thirty Two Thousand Dollars ($732,000) per net acre for the increased acreage. 2.5 MUTUAL COOPERATION. The parties shall use their best efforts and shall cooperate in good faith to mutually agree on any final Parkland configuration and location as well as on issues of access, utilities and similar development issues affecting the portion of land to be dedicated, and the balance of the property to be purchased. For example, if Wildlife Agency Permits (which are necessary in order to add fill dirt to that portion of the Parkland located within the wetlands) have not been or can not be obtained after all reasonable efforts by the Robertson Trust, the parties will work together to determine if a mutually agreeable alternative Parkland configuration can be developed, as further described in Section 3.6 below. The parties understand and acknowledge that roads, utilities, and similar easements may be necessary and all parties intend to cooperate in connection therewith, prior to, as well as after, the Park IOD and City's acceptance thereof. The City agrees that the Robertson Trust may list the City as a "co- applicant" on the Wildlife Agency and/or ACOE Permit applications necessary for the Park site, and the City will execute all documents requested by the Robertson Trust and/or Wildlife Agencies to process and issue such permits; provided, however, (1) all costs of obtaining such permits shall be borne by the Robertson Trust, and (2) the Robertson Trust will be identified on all permit applications as the fee owner of the property, and (3) the Robertson Trust shall be solely responsible for obtaining the permits. Because all parties agree that the Parkland has independent utility from other aspects of the Robertson Ranch development, the City agrees to consider future requests 504201.2 by Calavera or Robertson Trust for additional cooperation or assistance in helping ensure that the Wildlife Agency and ACOE permit applications and permits relating to the Parkland are kept separate from other permits relating to the development of the Robertson Ranch, to the extent possible. 3.0 CONDITIONS PRECEDENT TO ACCEPTANCE/PURCHASE. Acceptance of the Park IOD and purchase of the Purchased Land shall be expressly subject to each of the following terms and conditions: 3.1 TITLE. Robertson Trust shall prepare all legal descriptions and plat maps necessary for the Parkland, subject to approval by the City Engineer. The Parkland descriptions shall be designated by metes and bounds legal descriptions pursuant to the Subdivision Map Act (Government Code § 66428(a)(2)); provided, however, the Robertson Trust shall not be required to provide such descriptions until after the City Council approves the Robertson Ranch Master Plan. Title to the Parkland shall be free and clear of all monetary liens and any other encumbrances unacceptable to the City, including the Parkway Nursery agricultural lease scheduled to terminate in August 2006. Robertson Ranch shall provide the City a preliminary title report for the City's review and approval at least sixty (60) days prior to the City's anticipated acceptance upon written notification by the City once all conditions precedent herein have been satisfied. The Robertson Trust will be responsible for the costs of the premium for a CLTA Title Policy for the Dedicated Land and the Purchased Land. The City will be responsible for surveying costs for the ALTA surveys and the additional premium for an ALTA Policy which it will obtain to insure title to the Dedicated Land and the Purchased Land. 3.2 PHASE I STUDY. Prior to City' s acceptance of the Park IOD, Robertson Trust shall at their cost provide a current Phase I Environmental Site Assessment Study (and a Phase II Environmental Site Assessment Study if recommended by the Phase I Study) for both the Dedicated and Purchased Land, to determine the presence of Hazardous Substances as described in paragraph 3.3 below. 3.3 HAZARDOUS SUBSTANCES. The term "Hazardous Substance" as used in this Agreement shall mean any product substance, or waste that has been discharged onto or within the land in violation of applicable law and whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the land, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the land, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of the property owner to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not limited to, asbestos or asbestos containing materials, radon gas, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by products or fractions thereof. 3.4 ROBERTSON TRUST TO REMEDIATE "DE MINIMIS" CONTAMINATION. If the Study(ies) referred to in Paragraph 3.2 above identify Hazardous Substances on or under the Parkland during the due diligence period, 504201.2 Robertson Trust shall be obligated to diligently cause the remediation or removal of such Hazardous Substances (including any underground storage tanks that are discovered during grading) before the close of escrow as long as they can be remediated or removed in 180 days or less and as long as the cost of this remediation or removal does not exceed Two Hundred Fifty Thousand Dollars ($250,000). If Robertson Trust is required to remediate or remove Hazardous Substances under this section, the closing date shall be extended by 180 days or such lesser period as Robertson Trust requires, to prepare a work plan for the remediation or removal, obtain all necessary governmental approvals for the work and complete the remediation or removal. If Robertson Trust proceeds to commence remediation or removal of the identified Hazardous Substance, but cannot complete the remediation or removal within 180 days, City may, at its option, extend the closing date for an additional period up to 180 days to enable it to complete the remediation or removal before the close of escrow or terminate the escrow and reject the IOD without further obligation. 3.5 ROUGH GRADED. A portion of the Dedicated Land and a portion of the Purchased Land are located in a floodplain. Prior to City acceptance of the Park IOD to satisfy the Master Plan Park Acreage Requirement, the Robertson Trust will cause the Dedicated Land to be rough graded to the satisfaction of the City Engineer (1) to a uniform 2% slope and, (2) to a standard which elevates it out of the existing floodplain according to the Special Use Permit standards of CMC 21.110.030. All costs of grading and initial erosion control requirements per City's Grading Ordinance, for the Dedicated Land shall be paid by Robertson Trust. The City will pay for all reasonable costs relating to the grading of the Purchased Land to a uniform 2% slope to the satisfaction of the City Engineer (including the cost of grading the Purchased Land to a standard which elevates it out of the existing floodplain according to the Special Use Permit standards of CMC 21.110.030) as well as initial erosion control as shown in attached Exhibit "H", which sets forth grading standards and approval plans as well as the agreed upon fixed grading cost to be paid by the City. Prevailing wage rates shall be paid for the grading of the Purchased Land. City shall pay an amount not in excess of the following at the close of escrow for grading of the Purchased Land, based on the information in Perry & Shaw, Inc.'s 2nd Revised Rough Grading Proposal dated October 25, 2006 (the "Grading Proposal"), a copy of which is attached as Exhibit "1" to the Purchase Agreement: (1) the sum of $154,830, which represents all of the grading related costs described in Items P-l through P-7 of the Grading Proposal, less half of the cost to perform Item P-5 of the Grading Proposal1, plus (2) the sum of $1.34 per cubic yard to the extent more than 86,955 cubic yards of soil need to be cut, filled and graded to satisfy the City's requirements, plus (3) the sums required to comply with the Storm Water Pollution Prevention Plan (SWPPP) in connection with the above work, plus (4) any additional costs relating to the above that are identified as exclusions in the Grading Proposal; provided, however, Robertson Trust shall be responsible for the costs of the following in connection with such grading work: (a) removal of any buried trash and debris; and (b) the construction (but not the maintenance) of a desiltation basin. In any event, the City shall only be obligated to pay for Robertson Trust's actual costs up to the maximum 1 The total amount of the Grading Proposal is $179,914. The total cost of Item P-5 ("Import from Private Portion") is $50,168. Therefore, 50% of the cost of Item P-5 is $25,084. $179,914 - 25,084 = $154,830. 504201.2 amounts noted herein. If the City decides that hydroseeding or similar methods are necessary or desirable for erosion control, the City will perform such work at its sole cost, in addition to the costs described above, and Robertson Trust shall have no obligations in connection with the same. 3.6 PERMITS. The total 13.5 to 13.9 net acres of Parkland shall be free from environmental, geological, flooding or any other restrictions which could impact development of the Park as depicted by The Park Concept Plan (Exhibit "G") and Grading Standards and Plans (Exhibit "H"). The grading plan mylars (which need not include any required landscape plans) as approved by the City Engineer, and a valid Special Use Permit and Hillside Development Permit, shall be obtained by Robertson Trust prior to approval of the first final map for the Robertson Ranch. All Agency Permits and Grading Permits required to construct the Robertson Ranch Park as shown in Exhibits "G" and "H" shall be obtained prior to issuance of the first building permit for the Robertson Ranch Master Plan first village map, and Parkland grading shall be completed by not later than July 1, 2008. a. However, if Calavera is ready for its first building permit and all Agency Permits and Grading Permits required to construct the Park have not yet been obtained, the City shall allow issuance of building permits for up to one hundred thirty five (135) market rate units approved for the East Village, provided the City finds that all reasonable efforts have been made to obtain the Agency Permits required to construct the Robertson Ranch Park. (Except as otherwise specifically set forth in this Section 3.6(a), nothing in this Agreement shall be construed to give either Robertson Trust or Calavera priority in obtaining building permits from the City.) b. If grading is not completed by July 1, 2008, for any reason, no additional building permits in addition to the one hundred and thirty five (135) noted in subsection "a" above, may be obtained for the East or West Villages until grading is complete or the Master Plan is amended. However, this restriction will not apply if all Agency Permits and Grading Permits required to construct the Park are obtained by July 1, 2008, and grading is started within thirty (30) days and completed within one hundred and eighty (180) days of issuance of such permits, but in no event later than December 31, 2008. If grading is not completed by December 31, 2008 for any reason, no additional building permits may be obtained for the East or West Villages and City has the option to require Robertson Trust/Calavera to amend the Master Plan to designate a new Park site as specified by the City, in which case City will not be responsible for any grading costs incurred prior to that date. c. Notwithstanding the forgoing, should all Agency Permits and Grading Permits required to construct the Park not be issued by December 1, 2007, or if such Agency Permits are denied, and if the school district has indicated that it will not move forward with purchase of the school site designated on PA 13, then the parties shall work cooperatively to identify an alternative Parkland configuration on PA 12 and PA 13 that would allow the location of the Robertson Ranch Park to shift enough to the north to take the Parkland out of the Wetlands impact area shown on Exhibit "B" while still ensuring 504201.2 that the Robertson Ranch Park can accommodate the three soccer fields and all ancillary park amenities as shown on the Park Plan attached as Exhibit "G" to this Agreement. d. The phrase "all reasonable efforts" as used in this section 3.6 means that all necessary documentation and applications required by Agency regulation have been submitted to the Agencies, and any requests by the Agencies have been responded to in a timely fashion. 3.7 INTERNAL PARK ACCESS. In addition to required improvements to Cannon Road and El Camino Real, Robertson Ranch shall provide Street A, an internal all weather two lane paved access to the Park site. Water, sewer, cable and electricity shall be provided by Calavera to the PA 12 boundary with the East Village prior to or concurrent with development of the Park, to the reasonable satisfaction of the City Engineer. 3.8 DELIVERY OF DOCUMENTS. Within 10 days after the opening of escrow for the Purchased Land, Robertson Trust and Calavera shall deliver or cause to be delivered to City all of the following, to the extent in Robertson Trust's and Calavera's possession or control: environmental reports, environmental audits, soils reports, site plans, engineering reports and plans, traffic reports, landscape plans, plans and specification for any improvements, structural calculations, floor plans, and any and all other reports or documents of significance to the Dedicated Land including a Property Title Report. If City disapproves the dedication of the Dedicated Land due to information in such documents, in the time frame and manner provided for in the due diligence period for the Purchased Land, the provisions of section 2.5 of this Agreement shall be applicable and the parties shall cooperate to identify a mutually agreeable alternative park site or configuration. 3.9 EXECUTION OF TOXIC WASTE STATEMENT. Upon the execution of this Agreement, Robertson Trust and Calavera will execute the Toxic Waste Statement attached as Exhibit "I" hereto, in order to comply with City Municipal Code section 21.38.060(5)(D). 3.10 NO OTHER OBLIGATIONS. To Robertson Trust's Knowledge (as such term is defined in Paragraph 12.1 of the Purchase Agreement attached hereto as Exhibit F), (1) there are no obligations in connection with the Dedicated Land which will be binding upon City or affect the Land after Closing and (2) there are no assessments or bonds assessed or proposed to be assessed, against the Land, except matters which are set forth in the Preliminary Report and assessments imposed by City. To Robertson Trust's Knowledge there are no existing or proposed easements, covenants, restrictions, agreements or other documents which affect title to the Land and which are not disclosed by the Preliminary Report or the Master Plan. 3.11 ROBERTSON TRUST IS OWNER. Robertson Trust is the legal and equitable owner of the Land, with full right to convey the same, and without limiting the generality of the foregoing, Robertson Trust has not granted any option or right of first 504201.2 refusal or first opportunity to any party to acquire any interest in any of the Dedicated Land. The Robertson Trust has not sold, transferred or conveyed any air rights or other development rights with respect to the Land. 3.12 MASTER PLAN APPROVAL CONTINGENCY. The validity of this Agreement is conditioned on the City's approval of the Robertson Ranch Master Plan. This section is for the benefit of Robertson Trust. 4.0 INFRASTRUCTURE. The City shall not be obligated to provide any Master Plan conditions for Cannon Road, El Camino Real, and sewer, water or roadway frontage improvements or be responsible for any share of the cost of the Master Plan improvement obligations, whether or not such improvement obligations are attributable to the Parkland. 5.0 DRAINAGE. The parties agree that the City, by accepting the Park IOD and purchasing the Purchased Land, shall not be responsible to accept or provide for storm drainage from adjacent planning areas. 6.0 INDEMNITY. Robertson Trust shall reimburse, indemnify, defend and hold harmless City from any and all causes of action, claims, demands, loses, liabilities, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) arising as a result of any breach of a representation or warranty made in this Agreement by Robertson Trust from any transactions or occurrences relating to the Dedicated Land prior to the City's acceptance of the Dedicated Land, other than as a result of the acts of City and/or any of City's employees, agents, representatives, contractors or invitees upon the Dedicated Land prior to the date the City accepts the Park IOD, including all claims by the tenant (Parkway Nursery) currently occupying a portion of the site to be dedicated. The provisions of this Section 6.0 shall survive the City's acceptance of the Park IOD. 7.0 CERTIFICATE OF ACCEPTANCE. The City shall cause the Certificate of Acceptance of the IOD document to be recorded at close of escrow for the Purchased Land. Escrow fees shall be split equally between the City and Robertson Trust. City and Robertson Trust agree that no documentary transfer taxes are payable based on the City's acceptance of the Park IOD. 8.0 ABANDONMENT BY CITY. If the City determines not to use the Dedicated Land for a park, it shall record a rejection of the entire Park IOD, along with a Quitclaim Deed or other instrument necessary to clear title as reasonably requested or required by Robertson Ranch, as quickly as is reasonably possible following the determination by the City Council that the Park IOD is not desired. In such event, Robertson Trust may process a master plan amendment with the City to change the permitted use of the Dedicated Land, with the understanding that the City may condition its approval of the master plan amendment on Robertson Trust's satisfaction of an alternative Park Requirement. 9.0 OTHER PARK PROPERTY. It is currently the City's intent to accept the Park IOD for development of the Robertson Ranch Park as described in this Agreement, 504201.2 simultaneous with close of escrow for the Purchased Land to meet the demands for sports fields in the Northeast Quadrant, as soon as the conditions precedent described in this Agreement and the Purchase Agreement attached as Exhibit "F" have been satisfied. 10.0 CITY OPTION TO GRADE. If the grading of the entire 13.9 acres of Parkland is not completed to the satisfaction of the City Engineer by the dates set forth in Paragraph 3.6 above, the City may at its option close escrow and then commission the grading work to be done. The Robertson Trust shall be required to reimburse the City for any and all grading costs with legal interest in addition to the bonded amounts required by the City to secure those obligations, immediately upon ascertaining that amount and prior to the City's issuance of any further entitlements for the East or West Villages. City may thereafter proceed with acceptance of the Park IOD and close of escrow on the Purchased Land. 11.0 TIME OF THE ESSENCE. Time is of the essence of this Agreement. The parties understand that the time for performance of each obligation has been the subject of negotiation by the parties. 12.0 DEDICATED LAND TO BE CONVEYED "AS IS" AND WITHOUT WARRANTY. CITY ACKNOWLEDGES THAT, IF CITY ACCEPTS ROBERTSON TRUST'S OFFER OF DEDICATION, CITY WILL BE ACCEPTING FEE OWNERSHIP OF THE DEDICATED LAND SOLELY IN RELIANCE ON CITY'S OWN INVESTIGATION. CITY FURTHER ACKNOWLEDGES THAT, EXCEPT FOR ROBERTSON TRUST'S EXPRESS REPRESENTATIONS IN THIS AGREEMENT, ROBERTSON TRUST WILL CONVEY THE DEDICATED LAND TO CITY IN "AS IS, WHERE IS" CONDITION AND WITH ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE. City expressly acknowledges that, except as otherwise expressly specified herein, Robertson Trust makes and has made no representations or warranties whatsoever, express or implied, or arising by operation of law with respect to the Dedicated Land or any matter related thereto, including but not limited to any representation or warranty as to condition, merchantability, or fitness of the Dedicated Land for a particular use or purpose, any representation or warranty as to the presence or absence of hazardous materials in, on, under, or migrating to or from the Dedicated Land (although nothing herein shall affect Robertson Trust's obligations in Paragraphs 3.2 and 3.4 above, or otherwise pursuant to applicable law), or any representation or warranty as to any of the following matters: (1) soils, seismic, hydrological, geological, and topographical conditions and configurations; (2) availability of adequate schools and fire and police protection; (3) present, past, or future conformity of the Dedicated Land with planning, building, zoning, subdivision, and development statutes, ordinances, regulations, and permits, the general plan, and the specific plan; (4) the condition of title to the Dedicated Land, including but not limited to the existence of any easement, encroachment, or encumbrance, whether or not a matter of public record, and whether or not visible upon inspection of the Dedicated Land (although nothing herein shall affect Robertson Trust's obligations in Paragraph 3.1 above); and (5) any other matter relating to the Dedicated Land or to the development or operation of the Dedicated Land, 504201.2 10 including but not limited to value, feasibility of development^ cost, governmental permissions or entitlements, marketability, and investment return. 13.0 OPTION TO REACQUIRE PARKLAND. If City accepts fee title to the Parkland, but at any date prior to December 31, 2016, uses, develops or decides to use or develop the Parkland for any use other than as a public park or other public facility, Robertson Trust only (including its beneficiaries and family members and the heirs of the current trustees of Robertson Trust and their beneficiaries and family members) will have the right and option to reacquire the Parkland from City on the following terms and conditions: (1) City shall notify Robertson Trust in writing of City's intention to change the use of the Parkland, or such actual change in use, as soon as possible (the "Notice of Use Change'1); (2) Robertson Trust shall have 30 days after its receipt of the Notice of Use Change to notify City in writing of Robertson Trust's exercise of its option to reacquire the Parkland (the "Option to Reacquire"): (3) if Robertson Trust timely exercises its Option to Reacquire, City shall sell the Parkland to Robertson Trust at the "Sales Price" (defined below); (4) the parties shall then promptly open an escrow for such conveyance with a mutually acceptable title company acting as escrow agent; (5) title, escrow and transfer fees shall be paid by Robertson Trust; (6) Robertson Trust shall remit a deposit equal to 5 percent of the Sales Price upon the opening of escrow, and shall pay the balance of the Sales Price in cash to City at close of escrow; (7) the escrow shall close not later than the 90th day after Robertson Trust's exercise of its Option to Reacquire; (8) Robertson Trust may obtain financing to reacquire the Parkland, but financing will not be a contingency to such repurchase; and (9) City shall convey the Parkland to Robertson Trust free and clear of all liens and encumbrances of any nature, except those liens and encumbrances affecting the Parkland on the date that the Robertson Trust executes the lOD or those encumbrances required for public infrastructure or utilities. The provisions in this paragraph shall run with the Parkland and be binding on City and any successor owner of the Parkland, for the benefit of Robertson Trust, its beneficiaries, the Robertson Trust's successor trustees and the heirs and family members of the Robertson Trust trustees and beneficiaries, but otherwise the provisions herein are non-assignable to third parties outside of the Robertson family. For purposes of this Paragraph, the "Sales Price" is the sum of the following: (1) $732,000 per net acre, increased by 5% per year on an annual compounded basis (and prorated for any partial year) for every one year period after the date City originally became the fee owner of the Parkland until the date Robertson Trust reacquires fee ownership of the Parkland, plus (2) the City's actual out- of-pocket costs relating to the development of the Parkland to the date of its Notice of Use Change, including the City's actual out-of-pocket pre-construction costs (such as payable to consultants and designers) and actual out-of-pocket construction costs. For example, if the City retains fee ownership of the Parkland for a total of 3.5 years, the Sale Price for the Parkland will be $868,566 per acre ($732,000 x 105% compounded annually = $868,566) plus the City's applicable out-of-pocket costs as described above. If City elects to develop only a portion of the Parkland as a public park or other public facility, then Robertson Trust shall have the Option to Reacquire the remainder of the Parkland on the same terms and conditions as described above (pro rated as applicable for the reduced acreage). 507082.1 11 14.0 SUCCESSORS AND ASSIGNS. Except as set forth in Paragraph 13.0 above, this Agreement shall bind and inure to the benefit of the parties, their respective assigns and successors, and the successive owners of the Robertson Ranch, provided, however, payment for the Purchased Land and all grading shall be the made to the Robertson Trust. 15.0 NO THIRD PARTY BENEFICIARY. Nothing contained herein is intended nor shall be construed as benefiting any third party, or member of the public, nor shall it create or authorize any claims, causes of action or legal proceedings to interrupt or enforce this Agreement other than by the parties hereto and their successors and assigns. 16.0 SATISFACTION OF PLANNING COMMISSION CONDITION. The City's Planning Commission's Resolution No. 6106 dated May 31, 2006, recommends approval of the Robertson Ranch Master Plan, subject to various conditions. The Robertson Trust's, Calavera's and the City's execution of and compliance with this Agreement (and the Robertson Trust's and the City's execution of and compliance with the Parkland Purchase Agreement) constitutes satisfaction of Condition No. 4 of such Resolution. 17.0 RESPONSIBLE PARTIES. The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Robertson Trust and Calavera connection with the foregoing are as follows For City of Carlsbad: Raymond R. Patchett, City Manager City of Carlsbad 1200 Carlsbad Village Dr Carlsbad CA 92008 (760)434-2821 (760) 720-9461 fax With a copy to: Ronald R. Ball, City Attorney City of Carlsbad 1200 Carlsbad Village Dr Carlsbad CA 92008 (760)434-2891 (760) 434-8367 fax For Robertson Trust: Brian Robertson 1060 Old Avon Road Deary, ID 83823 504201.2 12 And Gary Robertson 29408 Paso Robles Road Valley Center, CA 92082 With a copy to: Ken Cablay, President SeaBourne Development PO Box 4659 Carlsbad CA 92018-4659 And Alan J. Zuckerman, Esq. Musick, Peeler & Garrett LLP 225 Broadway, Suite 1900 San Diego CA 92101 For Calavera Hills II. LLC; Brian Milich Senior Vice President Corky McMillin Companies 2750 Womble Road San Diego CA 92106 With a copy to: Amy G. Nefouse, Esq. DLA Piper US LLP 401 B Street, Suite 1700 San Diego C A 92101 18.0 CONSTRUCTION. This Agreement along with the Exhibit "F" (Purchase Agreement) shall be construed as a whole in accordance with its fair meaning, the captions being for the convenience of the parties only and not intended to describe or define the provisions and the portions of the Agreement to which they pertain. All parties acknowledge that they understand the terms and conditions of this Agreement and execute the Agreement without force or duress. No party shall deny the enforceability of any provision of this Agreement on the basis that it did not have legal counsel, or that it did not understand a term or condition of this Agreement. All parties to this Agreement acknowledge that they have been represented by counsel and/or advisors of their own choice and that neither party shall be deemed to have primary responsibility for drafting this Agreement. 504201.2 13 19.0 WAIVER. No waiver by either party of any default, breach, or any other term set forth herein shall constitute a waiver of any other default, breach, or term whether of the same or any other covenant or condition. 20.0 SEVERABILITY. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall be given its full and fair meaning in order to effectuate the purposes of this Agreement. 21.0 AMENDMENTS. No change or addition to this Agreement, or any part or portion thereof, shall be valid unless in writing and signed by all parties hereto. 22.0 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties hereto respecting the subject matter covered. This Agreement supersedes and replaces any and all previous discussions, negotiations and writings between the parties hereto, superseding and replacing all negotiations, prior discussions, preliminary agreements, the prior Parks Agreements or understanding respecting the subject matter whether written or oral. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written ATTEST: Calavera: Lorraine Wood CALAVERA MILES II, LLC a California limited liability company By: Name: 504201.2 14 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of _ On O&A. li ss. before me, 0 O HA S.Sfi Date ' personally appeared (Ll-flUL££. ft. Name and Title of Office7(e.g., "Jane Doe, Notary Public")Doe, fJ/)4fl..ry ic") / Name(s) of Signer(s) ftONNA S. SDCKROD Commission 1 1520450 Notoy Pubte - CcWbmlci Son Dtego County ^personally known to me D proved to me on the basis of satisfactory evidence to be the person^ whose name(*)(jp3*e subscribed tojhe within instrument and acknowledged^ me that /fje^fce/tljjey executed the same in(£j|)hsrr/tr)eir Authorized capacity(iag), and that by (ffis^c'tbisfr signature^ on the instrument the person(fc), or the entity upon behalf of which the person{$^ acted, executed the instrument. Place Notary Seal Above WtWESS my handand official seal. v o- Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Pr\££LftftJft f±D& t= &l&fJ Document Date:.3001,Number of Pages:: /*T Signer(s) Other Than Named Above: Capacity(ies) Claimed by Siqner(s) Signer's Name: ^J.-fnT/f-C^P'' ri • D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator 1^ Other: </l^ T. (K } | ,' c ^ &l ft A &>ber±<>or) ' \iffJr\e\\ RIGHT THUMBPRINT OF SIGNER Signer Is Representing: Top of thumb here "V Signer's Name: D Individual D Corporate Officer — Title(s): n Partner — D Limited D General CH Attorney in Fact D Trustee D Guardian or Conservator D Other: _ Signer Is Representing: • LLd) RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 Its: Robertson Trust:GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES OF THE ROBERTSON FAMILY 1995 TRUS^dated April 19. 1995, as to an undivided one-halLJmerest f Gary Robertson f Co-Successor Trustee Its: Co-SugCessor Trustee GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES UNDER DECLAR- ATION OF TRUST, dated October 8, 1976, as to an undivided 7% interest, ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLE TRJtfST, dated June 19, 1989, as to an undivided 43% in -, Name: GarVyKobertson Its: Co-SvKxessor Trustee 504201.2 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On before me, personally Date ' appeared T. ss. Name and Tille ol Officer (rg . 'Jane Doe, flfU u\c . , NolaryT>ublic") Name(s) of Signers) ^personally known to me a-yovad to me on the booia of oaliAfa&tory evidence to be the person©)whose namg^)4a<^ subscribed to the within instrument and acknowledged to me that be/s^^Tthey^executed the same in authorized capacity((esji and that by signature^!) on the instrument the personO), °r tne entity upon behalf of which the person^ acted, executed the instrument. Place Notary Seal Above 5S my hand and official seal SignaJure of Notary Public GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of the Notary: Commission Number: \ ^o3~l G3> 5? Date Commission Expires:^<x^ iOv"a.c>\ County Where Bond is Filed: <x^ S^ v. -o. Manufacturer or Vendor Number: >0 K) (Located on both sides of the notary seal border) Signature:J± Firm Name (if applicable) Place of Execution; o^A^eJ^ QJV Date; Rec. Form #R10 (Rev. 7/96} By: Name:_ Its: Robertson Trust: GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES OF THE ROBERTSON FAMILY 1995 TRUST, dated April 19, 1995, as to an undivided one-half interest By:. Name: Gary Robertson Its: Qg^uccessor Trustee By:. Name: Brian Robertson Its: Co-Successor Trustee GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES UNDER DECLAR- ATION OF TRUST, dated October 8, 1976, as to an undivided 7% interest By: Name: j8ary Robertson Its: jgo-Successor TrusteeS Name: Brian Robertson Its: Co-Successor Trustee GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLETRUST, dated June 19, 1989, as to an undivided 43%/interest By: Name: GaiyRobertson Its: Co-JSuccessor Trustee 504201.3 15 By:. Name: Brian Robertson Its: Co-Successor Trustee T&ffiAo-' ^aJfcA- yTj-fiuy "^r4^ ^^ 504201.3 16 By:_ Name: Its: Robertson Trust:GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEESO.F THE ROBERTSON FAMILY 1995 TRUST, a^^April 19, 1995, as to an undivided one-half jntejtest Name jSary Robertson Its: Co-Successor Trustee —-,Name: .Brian Robertson Its>6o-Successor Trustee GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES UNDER DECLAR- ATION OF TRUST, dated Qpteber 8, 1976, as to an undivided 7% interest, By:Name: Gary Robertson Its: Co-Successor Trustee. By:-— Name: Jman Robertson ItsX^o-Successor Trustee GARY ROBERTSON AND BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLEjrRJJST, dated June 19, 1989, as to an undivided 42 Name: Gary Robertson Its: Co-Successor Trustee 504201.3 15 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ) ) SS.) On January 2, 2007, before me, DIANE P. MENDOZA, a Notary Public in and for said County and State, personally appeared GARY ROBERTSON, personally known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his 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. DIANE P. MENDOZA Commission « 1508295 9tory Pubfc - CoWbmlo San Oteoo County Egomm. Expires Auj 7.200B| Notary Public EXHIBITS A - Map of West Village and East Village B - The Park Site C - Dedicated Land Legal Description and Plat Map D - IOD Form E - Purchased Land Legal Description and Plat Map F - Parkland Purchase Agreement dated October 27, 2006 G - The Park Concept Plan H - Grading Standards and Plans I - Toxic Waste Statement 504201.2 17 0 CD CO CO LU T3C CO 0 CM CD0 D)C "c C J5 z*!lX CO m a: LUQ.2 6 December 5, 2006 J.N.: 011014-3 Page 1 of 3 EXHIBIT "C" LEGAL DESCRIPTION PARKLAND DEDICATION THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT ADJ 01-13 PER CERTIFICATE OF COMPLIANCE CE 01-55, RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865065, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL 2, A POINT ON THE NORTHWESTERLY BOUNDARY OF MINOR SUBDIVISION MS 02-10 PER PARCEL MAP NO. 19804, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED IN THE OFFICE OF SAID COUNTY RECORDER ON AUGUST 3, 2005 AS FILE NO. 2005-0659805, AND SHOWN ON SAID CERTIFICATE OF COMPLIANCE AS POINT 71; THENCE NORTH 04°56'41" WEST, 35.81 FEET TO THE BEGINNING OF A NON-TANGENT 594.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS SOUTH 65°36'52" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 20°03'38" AN ARC DISTANCE OF 207.97 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 00° 19'45", AN ARC DISTANCE OF 0.29 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT BEING THE BEGINNING OF A NON-TANGENT 1737.19 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; A RADIAL LINE TO SAID CURVE BEARS SOUTH 26°15'27" EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34°38'56" AN ARC DISTANCE OF 1050.54 FEET TO THE BEGINNING OF A NON-TANGENT 6861.82 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; A RADIAL LINE TO SAID CURVE BEARS SOUTH 41°10'55" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 00°43'46" AN ARC DISTANCE OF 87.36 FEET TO THE BEGINNING OF A TANGENT 3794.76 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; O:\Legal_Descriptions\011014\PA12-IOD PARKLAND DEDICATION.lgl.doc December 5, 2006 J.N.: 011014-3 Page 2 of 3 THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01°56'43" AN ARC DISTANCE OF 128.84 FEET TO THE BEGINNING OF A NON-TANGENT 887.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 30°53'24" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 07°59'10" AN ARC DISTANCE OF 123.63 FEET TO THE BEGINNING OF A TANGENT 113.21 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 35°23'45" AN ARC DISTANCE OF 69.94 FEET TO THE BEGINNING OF A TANGENT 99.04 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 46°12'16" AN ARC DISTANCE OF 79.87 FEET TO THE BEGINNING OF A TANGENT 1396.18 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°32'16" AN ARC DISTANCE OF 86.21 FEET TO THE BEGINNING OF A TANGENT 260.72 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16°33'48" AN ARC DISTANCE OF 75.37 FEET TO THE BEGINNING OF A TANGENT 11399.00 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01°19'27" AN ARC DISTANCE OF 263.44 FEET; THENCE NON-TANGENT TO SAID CURVE SOUTH 60°10'35" EAST, 352.30 FEET; THENCE NORTH 42°31'50" EAST, 110.27 FEET; THENCE NORTH 78°36'30" EAST, 74.10 FEET TO THE BEGINNING OF A TANGENT 42.00 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27°18'10" AN ARC DISTANCE OF 20.01 FEET; THENCE NORTH 51°18'20" EAST, 244.09 FEET; THENCE SOUTH 86°15'37" EAST, 99.26 FEET; THENCE SOUTH 41°40'39" EAST, 37.97 FEET; O:\Legal_Descriptions\011014\PA12-IOD PARKLAND DEDICATION.lgl.doc December 5, 2006 J.N.: 011014-3 Page 3 of 3 THENCE SOUTH 82°50'17" EAST, 88.59 FEET TO THE BEGINNING OF A NON-TANGENT 61.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 85°00'16" EAST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 36°38'54" AN ARC DISTANCE OF 39.02 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26° 59'55" AN ARC DISTANCE OF 23.56 FEET TO THE TRUE POINT OF BEGINNING. AREA = 347,159 S.F. OR 7.97 ACRES MORE OR LESS O:\Legal_Descriptions\011014\PA12-IOD PARKLAND DEDICATION.lgl.doc OCEANSIDE SITE BASIS OF ff&RMG: PARCELEASTERLYLINE OF IEN 04'56'41 WASSH( RECORD OF SURVEY 17 LEGAL DESCRPLW PACIFIC OCEAN PORTION OF PARCEL 2 ADJ 01-13 PER CE 0/455 CITY OF ENCINITAS VICINITY MAP NO SCALE CONSULT T S 2710 Loker Ave. 760-931-7700 Suits 100 Fax: Carlsbad. CA 760-931-8680 92010 EASEMENT DA 8 10 11 12 14 15 16 17 18 19 20 21 22 DELTA/BEARING N 04"56'41' W tf20'03'38" tf0019'45' L=34'38'56' 6=075910 S 60W3TE N 42V1'50"E N 7836'30'E N 511820" E S8615'3rE S41'40'39 E S82W1TE RADIUS 594.00' 50.0V 1737.19' 6861.82' 3794.76* 887.00' 113.21' 99.041 1396.18' 260.72' 11399.00' 42.00' 61.00' 50.00' 21 TA LENI3TH 3581 207. 1050,54 87. 123. 69 86 26344 351 11C 244 2 WON 11. 0.29 84' 94'79 sr 2C.01 09' W 8659 APPLICANT:DATE: DECEMBEi 5, 2006 ROBERTSON FAMILY TRUST PARKLAND DEDMnON ROBERTSON RANCH SHEET 1 OF SHEETS A.P.N. 208-,'0-JS G:\011014\0114BZ29A.dwg Dec 06,006 9:25am Xrefx 0114BMAP: 01 HAM AP: OlUfyna PARCEL 2 ADJ 01-13, CE 01-5, F/N No. 2001-0865065 ]S85W'16"E (R) 'OPEN SPAC '/PA 12713.50 A.C. 2710 Loker Ave. 760-931-7700 Suit* 100 Fax: CarlBbod, CA 760-931-8680 92010 LEGEND SUBDMSON BOUNDARY RIGHT-OF-WAY P.O.& POINT OF BEGINNING %%%& AREA OF DEDICATED LAND ACRES - 7.97 AC. SCALE: 1" = 200' APPUCANT;DATE: DECEMBER 5, 2006 ROBERTSON FAMILY TRUST PARKLAND DEDICATION ROBERTSON RANCH SHEET 2 OF 2 SHEETS A.P.N. 208-010-36 G:\011014\0114flZ29A.dwg Dec 06, 2006 9:30om Xrefs: 01148MAP: 0114AMAP: OlUfema December 5, 2006 JN 011014 O'Day Consultants, Inc. 2710 Loker Ave West, Ste 100 Carlsbad, CA 92010 Robertson Ranch West Village Parkland Dedication Lot Closure Parcel name: PA12-IOD-DEDICATION North : Curve Length : Delta: Chord : Course In : RP North : End North: Curve Length : Delta: Chord : Course In : RP North : End North: Curve Length : Delta: Chord : Course In: RP North: End North: Curve Length : Delta: Chord: Course In: RP North: End North: Curve Length: Delta: Chord: Course In: RP North: End North: Curve Length: Delta: Chord: Course In: RP North: End North: Curve Length : Delta: 17948.0047 1050.54 34-38-56 1034.62 S 26-15-27 E 16390.0670 17234.7547 87.36 0-43-46 87.35 S 41-10-55 W 12070.3949 17291.8565 128.84 1-56-43 128.84 S 40-27-09 W 14404.2562 17373.7685 123.63 7-59-10 123.53 N 30-53-24 E 18134.9516 17444.4177 69.94 35-23-45 68.83 N 38-52-34 E 17532.5523 17501.8642 79.87 46-12-16 77 .72 N 74-16-19 E 17528.7112 17578.9426 86.21 3-32-16 East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course: Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : 20431.2789 1737.19 541.89 S 46-25-05 N 60-54-23 21199.8223 19681.8198 6861.82 43.68 N 49-10-58 N 40-27-09 15163.6385 19615.7069 3794.76 64.43 N 50-31-12 N 38-30-26 17153.6004 19516.2684 887.00 61.92 N 55-07-01 S 38-52-34 19971.6467 19414.9313 113.21 36.13 N 33-25-34 S 74-16-19 19485.9863 19377.0149 99.04 42.25 N 07-22-27 N 59-31-25 19472.3468 19386.9903 1396.18 43.12 W W W E W E W W W W E W G:\OI 1014\lot-closure\PAI2-IOD-PARKLAND DEDICATION.doc Page 1 of 3 December 5,2006 JN 011014 O'Day Consultants, Inc. 2710 Loker Ave West, Ste 100 Carlsbad, CA 92010 Chord: Course In: RP North: End North: Curve Length: Delta: Chord: Course In: RP North: End North: Curve Length: Delta: Chord: Course In: RP North: End North: Line Course: North: Line Course: North: Line Course: North: Curve Length: Delta: Chord: Course In: RP North: End North: Line Course: North: Line Course: North: Line Course: North: Line Course: North Curve Length Delta Chord Course In RP North End North Curve Length Delta Chord Course In RP North End North 86.19 S 59-31-25 E 16870.8235 17651.8436 75.37 16-33-48 75.11 N 55-59-09 W 17797.6898 17719.5032 263.44 1-19-27 263.43 N 72-32-57 W 21137.9184 17971.7118 S 60-10-35 E 17796.5019 N 42-31-50 E : 17877.7617 N 78-36-30 E : 17892.3975 : 20.01 : 27-18-10 : 19.83 : N 11-23-30 W : 17933.5701 : 17900.7895 N 51-18-20 E : 18053.3865 S 86-15-37 E : 18046.9124 S 41-40-39 E : 18018.5526 S 82-50-17 E : 18007.5077 : 39.02 : 36-38-54 : 38.36 : S 85-00-16 E : 18002.1959 : 17970.1849 : 23.56 : 26-59-55 : 23.34 : S 58-20-50 W : 17943.9464 : 17948.0035 Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : Length: 352.30 East : Length: 110.27 East : Length: 74.10 East -. Radius : Tangent : Course : Course Out : East : East : Length: 244.09 East : Length: 99.26 East : Length: 37.97 East : Length: 88.59 East : Radius : Tangent : Course : Course Out : East : East : Radius : Tangent : Course : Course Out : East : East : N 32-14-43 E N 55-59-09 W 20590.2716 19432.9790 260.72 37.95 N 25-43-57 E S 72-32-57 E 19216.8684 19465.5887 11399.00 131.72 N 16-47-20 E S 73-52-24 E 8591.2318 19541.6809 19847.3225 19921.8632 19994.5034 42.00 10.20 N 64-57-25 E S 38-41-40 E 19986.2078 20012.4648 20202.9748 20302.0235 20327.2711 20415.1699 61.00 20.20 S 13-19-43 E S 58-20-50 W 20475.9382 20424.0124 50.00 12.00 S 18-09-12 E N 85-20-45 E 20381.4502 20431.2853 Page 2 of 3 G:\0l 10l4\lot-closure\PA12-IOD-PARKLAND DEDlCATION.doc December 5,2006 JN 011014 O'Day Consultants, Inc. 2710 Loker Ave West, Ste 100 Carlsbad, CA 92010 Perimeter: 3054.38 Area: 347,159 sq.ft. 7.97 acres Mapcheck Closure - (Uses listed courses, radii, and deltas) Error Closure: 0.0065 Course: S 78-50-01 E Error North: -0.00126 East : 0.00638 Precision 1: 469,903.08 Page 3 of 3 G:\OI IO!4\]ot-closure\PA12-IOD-PARKLAND DEDICATION.doc EXHIBIT D RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 MAIL TAX STATEMENTS TO: EXEMPT SPACE ABOVE THIS LINE FOR RECORDERS USE Documentary transfer tax is $ -0- [X] Computed on full value of property conveyed, or [ ] computed on full value less value of liens and encumbrances remaining at time of sale or transfer. [ ] unincorporated area or [X] City of Carlsbad; and IRREVOCABLE OFFER TO DEDICATE REAL PROPERTY FOR A NORTHEAST QUADRANT PARK Project NO./NAME: APN Gary Robertson and Brian Robertson as co-successor trustees of the Robertson Family 1995 Trust, dated April 15, 1995 as to an undivided one-half interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of Trust dated October 8,1976, as to an undivided 7% interest; and Gary Robertson and Brian Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June 19,1989 as to an undivided 43% interest (collectively "Robertson Trust"), hereinafter designated Grantor, represents that they are the owners of the hereinafter described real property, and for a valuable consideration, hereby makes an IRREVOCABLE OFFER OF DEDICATION of fee title to the CITY OF CARLSBAD, a Municipal corporation, hereinafter designated Grantee, its successors and assigns, for a future North East Quadrant Public Park upon, through, under, over and across the hereinafter described real property for the following purpose: PUBLIC PARK The real property referred to above is situated in the City of Carlsbad, County of San Diego, State of California and is described in Exhibit "A" consisting of page(s), attached hereto and made a part hereof. Exhibit "B" consisting of page(s) is attached for clarity only. This Offer of dedication is made pursuant to Section 7050 of the Government Code of the State of California and may only be accepted by the City Council of the City of Carlsbad A Public Park. This Offer of Dedication shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns. IN WITNESS WHEREOF, the Grantor has caused this Irrevocable offer of Dedication to be executed this day of , 200 . Gary Robertson and Brian Robertson as co- successor trustees of the Robertson Family 1995 Trust, dated April 15, 1995 as to an undivided one- half interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of Trust dated October 8, 1976, as to an undivided 7% interest; and Gary Robertson and Brian Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June 19, 1989 as to an undivided 43% interest (collectively "Robertson Trust") By: (Signature) Name: (Type or Print) Title: (Type or Print) By: (Signature) Name: (Type or Print) Title: (Type or Print) December 5, 2006 J.N.: 011014-3 Page 1 of 2 EXHIBIT "E" LEGAL DESCRIPTION PARKLAND ACQUISITION THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT ADJ 01-13 PER CERTIFICATE OF COMPLIANCE CE 01-55, RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865065, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL 2, A POINT ON THE NORTHWESTERLY BOUNDARY OF MINOR SUBDIVISION MS 02-10 PER PARCEL MAP NO. 19804, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED IN THE OFFICE OF SAID COUNTY RECORDER ON AUGUST 3, 2005 AS FILE NO. 2005-0659805, AND SHOWN ON SAID CERTIFICATE OF COMPLIANCE AS POINT 71; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID PARCEL 2 SOUTH 67°15'16" WEST, 15.60 FEET; THENCE SOUTH 53°49'59" WEST, 241.03 FEET; THENCE SOUTH 46°32'58" WEST, 281.65 FEET; THENCE SOUTH 24°02'16" WEST, 40.09 FEET; THENCE SOUTH 37°46'23" WEST, 139.56 FEET; THENCE SOUTH 42°27'17" WEST, 23.56 FEET; THENCE SOUTH 31°48'12" WEST, 60.19 FEET; THENCE SOUTH 29°07'38" WEST, 77.37 FEET; THENCE SOUTH 25°38'31" WEST, 41.44 FEET TO THE BEGINNING OF A NON-TANGENT 90.89 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 73°40'17" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE AND LEAVING SAID BOUNDARY THROUGH A CENTRAL ANGLE OF 30°41'24" AN ARC DISTANCE OF 48.68 O:\Legal_Descriptions\011014\PA12-IOD-PARKLAND ACQUISITION.lgl.doc December 5, 2006 J.N.: 011014-3 Page 2 of 2 FEET TO THE BEGINNING OF A NON-TANGENT 6861.82 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 42°59'01" WEST; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01°48'06" AN ARC DISTANCE OF 215.77 FEET TO THE BEGINNING OF A NON-TANGENT 1737.19 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 60°54'23" EAST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34°38'56" AN ARC DISTANCE OF 1050.54 FEET TO THE BEGINNING OF A NON-TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 85°20'45" WEST; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0°19'45" AN ARC DISTANCE OF 0.29 FEET TO THE BEGINNING OF A TANGENT 594.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 20°03'38" AN ARC DISTANCE OF 207.97 FEET TO A POINT ON THE EASTERLY BOUNDARY OF SAID PARCEL 2; THENCE ALONG SAID EASTERLY BOUNDARY, NON-TANGENT TO SAID CURVE, SOUTH 04°56'41" EAST 35.81 FEET TO THE POINT OF BEGINNING. AREA = 240,960 S.F. OR 5.53 ACRES MORE OR LESS O:\Legal_Descriptions\011014\PA12-IOD-PARKLAND ACQUISITION.lgl.doc BASIS OF BEARING: EASJERL Y LINE OF PARCEL 2 IE N 04'56'41 W AS SHOW ON RECORD OF SURVEY 17111. LEGAL DESCRIPTION PORTION OF PARCEL 2 OF ADJ 01-13 PER CE 01-55 CONSULT TS" 2710 Loker Ave. 760-931-7700 Suite 100 Fax:Carlsbad, CA 760-931-8680 92010 OCEANSIDE SITE FAcinc OCEAN CITY OF ENCINITAS VICINITY MAP NO SCALE EASEMENT D 8 10 11 12 13 14 15 DELTA/BEARING 5 6715'16" W S 53'49'59" W S 46-32'58" W S 24V2'16" W S 37"46'23" W S 42"2ri7" W S 31'48'12" W S 29V738" W S 25'38'31" W S 04'56'41 E RADIUS 90.89' 6861.82' 1737.19' 50.00' 594.00' TA LENGTH 15.60' 241.03' 281.65' 40.09' 139.56' 23.56' 60.19' 77. 37' 41.44' 48.68' 215.7T 1050.54' 0.29' 207.9T 35.81' APPLICANT:DATE: DECEMBER 5. 2006 ROBERTSON FAMILY TRUST PARKLAND ACQU&nON ROBERTSON RANCH SHEET 1 OF 2 SHEETS A.P.N. 208-010-36 G:\011014\0114BZ29B.dwg Dec 06, 2006 7:33am Xrefe 0114RMAP: 01UAMAP PARCEL 2 ADJ 01-13, CE 01- F/N No. 2001-0865065 PA 23C OPEN SPACE, 13.50 A.C. 542-59'01'W(R) LEGEND SUBDIVISION BOUNDARY RIGHT-OF-WAY P.OA POINT OF BEGINNING ™ AREA OF PURCHASED LAND ACRES = 5.53 A.C.2710 Loker Ave. Suite 100 Cortabad. CA 92010 760-931-7700 Fax:760-931-8680 APPLICANT:DATE: DECEMBER 5, 2006 SHEET 2 OF 2 SHEETSPARKLAND ACGUISfJJON ROBfmSON RANCHROBERTSON FAMILY TRUST A.P.N. 208-010-36 G:\0110H\0114BZ29B.dwg Dec 06, 2006 7:32am Xrefs 0114BMAP: 01HAMAP December 5,2006 JN 011014 O'Day Consultants, Inc. 2710 Loker Ave West, Ste 100 Carlsbad, CA 92010 Robertson Ranch West Village Parkland Acquisition Lot Closure Parcel name: PA1 2 -IOD- REMAIN North: 17711.5842 East : 20485. Line Course: S 67-15-16 W Length: 15.60 North: 17705.5526 East Line Course: S 53-49-59 W Length: 241.03 North: 17563.3112 East Line Course: S 46-32-58 W Length: 281.65 North: 17369.6125 East Line Course: S 24-02-16 W Length: 40.09 North: 17332.9992 East Line Course: S 37-46-23 W Length: 139.56 North: 17222.6850 East Line Course: S 42-27-17 W Length: 23.56 North: 17205.3022 East Line Course: S 31-48-12 W Length: 60.19 North: 17154.1490 East Line Course: S 29-07-38 W Length: 77.37 North: 17086.5631 East Line Course: S 25-38-31 W Length: 41.44 North: 17049.2043 East Curve Length: 48.68 Radius Delta: Chord : Course In: RP North: End North: Curve Length : Delta: Chord: Course In: RP North: End North: Curve Length : Delta: Chord: Course In: RP North: End North: Curve Length: Delta: 30-41-24 48.10 S 73-40-17 W 17023.6509 17090.1438 215.77 1-48-06 215.77 S 42-59-01 W 12070.3879 17234.7477 1050.54 34-38-56 1034.62 S 60-54-23 E 16390.0600 17947.9977 0.29 0-19-45 Tangent Course Course Out East East Radius Tangent Course Course Out East East Radius Tangent Course Course Out East East Radius Tangent 6890 20471.3022 20276.7185 20072.2495 20055.9193 19970.4339 19954.5307 19922.8103 19885.1504 19867.2174 90.89 24.94 N 31-40-25 N 42-58-53 19779.9934 19841.9587 6861.82 107.90 N 47-55-02 N 41-10-55 15163.6443 19681.8256 1737.19 541.89 N 46-25-05 N 26-15-27 21199.8282 20431.2848 50.00 0.14 W E W E E W G :\011014\lot-closure\PA 12- 1OD-ACQU IS ITION.doc Page 1 of 2 December 5,2006 JN 011014 O'Day Consultants, Inc. 2710 Loker Ave West, Ste 100 Carlsbad, CA 92010 Chord: Course In: RP North: End North: Curve Length: Delta: Chord: Course In: RP North: End North: Line Course: North: 0.29 S 85-20-45 W 17943.9407 17947.7114 207.97 20-03-38 206.91 N 85-40-30 E 17992.5072 17747.2595 S 04-56-41 E 17711.5828 Course Course Out East East Radius Tangent Course Course Out East East Length: 35.81 East S 04-29-22 N 85-40-30 20381.4496 20431.3073 594.00 105.06 S 14-21-19 S 65-36-52 21023.6157 20482.6078 20485.6944 E E E W Perimeter: 2479.59 Area: 240,960 sq.ft. 5.53 acres Mapcheck Closure - (Uses listed courses, radii, and deltas) Error Closure: 0.0056 Course: S 75-25-07 E Error North: -0.00141 East : 0.00543 Precision 1: 442,776.79 G:\OII014\lot-closure\PAI2-IOD-ACQUISlTION.doc Page 2 of 2 EXHIBIT "Ff PARKLAND PURCHASE AGREEMENT This Parkland Purchase Agreement (this "Agreement") dated as of October 27, 2006, is made and entered into by and between Gary Robertson and Brian Robertson, as co-successor trustees of the Robertson Family 1995 Trust dated April 19, 1995, as to an undivided one-half interest; Gary Robertson and Brian Robertson, co-successor trustees under Declaration of Trust dated October 8, 1976, as to an undivided 7% interest; and Gary Robertson and Brian Robertson, co-successor trustees of the Elsie M. Kelly Irrevocable Trust dated June 19, 1989, as to an undivided 43% interest, (collectively, "Robertson Trust"), and the City of Carlsbad, a Municipal Corporation, ("City") with regard to the following: A. Robertson Trust is the fee owner of about 220 acres of land in the City of Carlsbad, commonly known as the West Village of Robertson Ranch, as described in the Robertson Ranch Master Plan dated May 2006 (the "Master Plan"). The West Village is divided into various Planning Areas, including Planning Area 12 ("PA 12"). which consists of about 13.9 gross acres of land and is located within the southeast corner of the West Village. B. Concurrently with the execution of this Agreement, Robertson Trust and City (and Calavera Hills II, LLC) are executing a "Parkland Agreement for the Robertson Ranch Master Plan" dated October 27, 2006 (the "Parkland Agreement"). This Agreement is also Exhibit "F" to the Parkland Agreement. C. The Parkland Agreement (1) references the land within PA 12 to be purchased by City in accordance with the terms of this Agreement and (2) describes Robertson Trust's Irrevocable Offer to Dedicate ("IOD") 7.97 net acres of adjacent land within PA 12. The land within PA 12 to be purchased by City in accordance with the terms of this Agreement is referred to as the "Purchased Land" in both the Parkland Agreement and in this Agreement. The land within PA 12 to be dedicated by Robertson Trust to City is referred to as the "Dedicated Land" in the both Parkland Agreement and in this Agreement. The Purchased Land and the Dedicated Land together constitute the entirety of PA 12, and will be the site of the Robertson Ranch Park (defined in Recital D below). D. Under this Agreement, City desires to acquire the Purchased Land, which consists of about 5.53 to 5.93 net acres of land within PA 12, and which is contiguous to the Dedicated Land to be dedicated by Robertson Trust to City in satisfaction of the Master Plan's park requirement. The location of the Purchased Land is generally shown on Exhibit "E" to the Parkland Agreement. City intends to purchase the Purchased Land (along with accepting the Dedicated Land) for the purpose of constructing a public park and recreation area and associated improvements (the "Robertson Ranch Park"). Robertson Trust is willing to sell the Purchased Land to City on the terms and conditions as set forth herein. E. Both this Agreement and the Parkland Agreement contain provisions relating to the Purchased Land. To the extent the Parkland Agreement contains provisions relating to the Purchased Land, such provisions of the Parkland Agreement are incorporated herein by this 504184.2 reference; provided, however, if any inconsistency exists between the Parkland Agreement and this Agreement relating to the Purchased Land, the provisions in this Agreement shall prevail. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. PURCHASE AND SALE. 1.1 The Purchased Land. Subject to the terms and conditions set forth in this Agreement, Robertson Trust hereby agrees to sell to City, and City hereby agrees to purchase from Robertson Trust, all of Robertson Trust's right, title and interest in and to the following: (a) Fee title to a portion of PA 12 of the Master Plan containing between 5.53 to 5.93 net acres (the "Land") for public facility purposes in a condition and configuration acceptable to the Community Services Director or her designee and consistent with the provisions in this Agreement, at the location generally shown on Exhibit "E" attached to the Parkland Agreement. (b) All rights, privileges and easements appurtenant to the Land, as well as all development rights, land use entitlements, including without limitation existing building permits, licenses, permits and certificates, air rights, mineral rights, water, water rights, riparian rights and water stock relating to the Land and any rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the Land, to the extent such rights are held by Robertson Trust (collectively, the "Appurtenances''): and (c) Any improvements and fixtures located on the Land (collectively, the "Improvements"). The Land, Appurtenances and Improvements described in Paragraphs 1.1 (a) through 1.1 (c) above are hereinafter collectively referred to as the "Purchased Land". 1.2 Increase in Size of Purchased Land. It is City's intent that the entire 13.9 gross acres of PA 12 be developed as the Robertson Ranch Park. Therefore, notwithstanding anything in this Agreement to the contrary, if City approves a Master Plan with a reduced unit density from the current expected density of 1,122 units, then (1) the acreage of the Dedicated Land will be reduced accordingly, based on the number and type of units approved by City and (2) City will increase the acreage (and proportionate purchase price) of the Purchased Land by an equivalent amount. For example, if the Dedicated Land is reduced from 7.97 acres to 6.97 net acres, then (1) the size of the Purchased Land will be increased by one net acre, (2) the Per Acre Price component of the Purchase Price (as such terms are defined in Paragraph 3 below) will be increased by an additional $732,000 and (3) the Grading Price component of the Purchase Price (as such terms are defined in Paragraph 3 below) will be increased to reflect Robertson Trust's increased cost for the additional cubic yards to be graded, as shown on Exhibit "1", Perry & Shaw Inc.'s "Robertson Ranch Public Portion - 2nd Revised Rough Grading Proposal" dated October 25, 2006 (the "Grading Proposal"). 504184.2 1.3 Escrow. Within five days after approval of the Robertson Ranch Master Plan by the City Council, the parties shall open escrow (the "Escrow") with Stewart Title Company (the "Escrow Holder"). Robertson Trust and City shall each deposit an executed counterpart of this Agreement with Escrow Holder and this Agreement shall serve as instructions to Escrow Holder for consummation of the transactions contemplated hereby. Robertson Trust and City agree to execute such supplemental escrow instructions as are reasonably acceptable to Robertson Trust and City and as may be required by the Escrow Holder, provided that in the event of any inconsistency between any escrow instructions and the terms of this Agreement, the terms of this Agreement shall control. 1.4 The Deposit. Upon City's delivery to Escrow Holder of City's Notice to Proceed (as defined in Paragraph 7 below), City shall remit to Escrow Holder a deposit in the sum of Three Hundred and Forty Thousand Dollars ($340,000.00) (the "Deposit"). The Escrow Holder shall place the Deposit in an interest-bearing account for the benefit of City. 1.4.1 [Deleted] 1.5 Closing. For purposes of this Agreement, the term "Closing" shall mean the time when the Escrow Holder shall have caused the recordation of the Deed (as defined in Section 4 below). The term "Closing Date" shall mean the date for the Closing, which shall be as soon as possible after Escrow is notified in writing by City and Robertson Trust that all Conditions Precedent (as defined in Article 9 below) have been satisfied. Notwithstanding anything herein to the contrary, if the Closing Date fails to occur by December 31, 2008 through no fault of either party, then (1) the Closing Date may be extended by mutual agreement of the parties, or (2) either party may terminate this Agreement, in which event (a) the Deposit shall be returned to City, (b) neither party shall have any further rights or obligations to the other with respect to the Purchased Land identified herein, (c) the City may require that the Park Dedication Requirement be satisfied in an alternative location within the Robertson Ranch Master Plan and (d) Robertson Trust may process an amendment to the Master Plan relating to the development of the Purchased Land and Dedicated Land identified herein and the designation of a new park site elsewhere in the Master Plan. 2. PROPERTY BOUNDARIES. The property boundaries for both the Dedicated Land and the Purchased Land shall be as shown on Exhibit "B" attached to the Parkland Agreement (the "Agreed Boundary"), subject to the provisions in Paragraph 1.2 above. Robertson Trust will cause to be performed at its own expense such civil engineering as is reasonably required to establish the Agreed Boundary by metes and bounds descriptions and plat maps as may be required for issuance of an ALTA title policy, subject to approval of the City Engineer; provided, however, the cost of any surveying required for the ALTA Title Policy shall be borne by City. 3. PURCHASE PRICE. City shall pay the following for the Purchased Land: (1) Seven Hundred Thirty Two Thousand Dollars ($732,000.00) per net acre (the "Per Acre Price") plus (2) the amount of Robertson Trust's cost to grade the Purchased Land (the "Grading Price"), as set forth in greater detail in Paragraph 3.5 of the Parkland Agreement, entitled "Rough Grading". The sum of the Per Acre Price and the Grading Price is hereinafter referred to in this Agreement as the "Purchase Price". Thus, if the Purchased Land is 5.53 net acres, the Per Acre 504184.2 Price component of the Purchase Price will be Four Million Forty Seven Thousand Nine Hundred and Sixty Dollars ($4,047,960.00). For purposes of calculating the Per Acre Price, the term "net acre" shall have the same meaning as in the Parkland Agreement. City shall remit the Purchase Price in cash (less the Deposit) to Escrow Holder prior to the Closing Date, and Escrow Holder shall deliver the Purchase Price to Robertson Trust on the Closing Date. The sum of Seven Hundred Thirty Two Thousand Dollars ($732,000.00) per acre is the current park-in-lieu fee for Master Plan Development established by the City Council on June 25, 2005, based on the most recent, property appraisals conducted by the City. The parties acknowledge that the Price Per Acre is below the fair market value of the Purchased Land. The parties shall jointly notify Escrow Holder in writing at least 10 days prior to the Closing Date of the exact amount of the Purchase Price. 3.1 Audit Right. When the written grading invoice is received and prior to the Closing Date, City shall have the right to audit all Robertson Trust's invoices and all other documents relating to Robertson Trust's calculation of the Grading Price. If such audit discloses that City has been overcharged or undercharged for the Grading Price, Robertson Trust shall promptly revise the Grading Price. Notwithstanding the foregoing, the Grading Price shall in no event exceed the amounts described in Paragraph 3.5 of the Parkland Agreement, except if the amount of Purchased Land is increased according to Paragraph 1.2 herein and/or for identified exclusions in the Grading Proposal. Further, the City's obligation to pay for grading related expenses shall in no event exceed the actual amounts billed by the grading contractor and others for the work they perform on and to the Purchased Land. 4. TITLE TO THE PURCHASED LAND. Upon Closing, Robertson Trust shall convey to City marketable and insurable fee simple title to the Purchased Land by a duly executed and acknowledged grant deed in a form reasonable acceptable to City (the "Deed"). Evidence of such conveyance by Robertson Trust shall be the issuance by Stewart Title Company (the "Title Company") to City of an ALTA Owner's Policy of Title Insurance in the amount of the Purchase Price, insuring fee simple title to the Purchased Land all subject only to such exceptions as City shall approve pursuant to Section 6 below (the "Title Policy"). The Title Policy shall contain such special endorsements as City may reasonably require at its expense (the "Endorsements"). 5. CITY SITE INSPECTIONS. Prior to the Closing Date, Robertson Trust shall afford authorized representatives of City access to the Land upon twenty-four (24) hours prior telephone notice to Robertson Trust, for purposes of satisfying City with respect to (i) the representations, warranties and covenants of Robertson Trust contained herein, (ii) the condition of the Land and (iii) satisfaction of any Conditions Precedent to the Closing contained herein, including without limitation, any site inspections and engineering and environmental surveys to be conducted by City at its cost and expense (except as set forth in Paragraphs 3.2 and 3.4 of the Parkland Agreement). Robertson Trust may elect to have a representative of Robertson Trust present during City's site inspections. 5.1 City Obligations Relating to Inspections. With respect to such entry, investigations, assessments and other tests upon the Land, City shall: (i) not cause or permit any unreasonable interference with Robertson Trust's activities on or near the Land; (ii) keep the Land free and clear of any and all liens and encumbrances resulting from any activities by, or on 504184.2 behalf of, City; (iii) indemnify, defend, protect and hold Robertson Trust and its agents and the Land harmless from and against any and all claims (including reasonable attorneys' fees) arising out of such entry and activities upon the Land; (iv) discharge any and/or encumbrance arising out of such entry, investigations, assessments and other tests as soon as practicable after Robertson Trust's demand, whether or not such lien and/or encumbrance is considered valid by City; and (v) within 30 days after such entry, promptly repair any alteration of the condition of the Land which resulted from such entry upon, and/or such investigations, assessments, and other tests with respect to, the Land so as to restore the Land to the same condition inn which it existed prior to such entry and/or activities. The indemnification obligations of City under this Section 5 shall survive any termination of this Agreement. 5.2 [Deleted] 6. TITLE MATTERS. Once in escrow, within thirty (30) days following City's receipt of the Preliminary Report (defined in Paragraph 8.1 below), City shall specify in writing any special requirements for the Title Policy (including, without limitations, exceptions to be removed that Robertson Trust is capable of removing, and any required endorsements). In any event, Robertson Trust covenants to cause to be released and reconveyed from the Land, and to remove as exceptions to title prior to the Closing, any mortgages, deeds of trust, or other monetary encumbrances, assessments or indebtedness shown on the Preliminary Report (defined in Paragraph 8.1 below) except for current, non-delinquent real property taxes and assessments billed and paid as a part of the real property tax bill. In addition, Robertson Trust shall reasonably cooperate with City and use Robertson Trust's reasonable efforts to cause the removal as exceptions to the Title Policy of any items identified in the Preliminary Report and specified by City to Robertson Trust during the Due Diligence Period (as defined in Section 7) as items which shall be disapproved by City. If City fails to deliver City's Notice to Proceed (as defined in Section 7) to Robertson Trust prior to the expiration of the Due Diligence Period, the City shall be deemed to have elected to terminate this Agreement. In the event of the termination of this Agreement pursuant to this Section 6, (1) neither party shall have any further obligations to the other under this Agreement (except under provisions of this Agreement which specifically state that they survive termination), (2) City will have no obligation to pay the Grading Price to Robertson Trust and (3) the Robertson Trust will have no obligation to grade the Purchased Land, and (4) the City may require Robertson Trust/Calavera to process a Master Plan amendment to designate another park site location to be specified by the City. 7. DUE DILIGENCE PERIOD. As used herein, the term "Due Diligence Period" shall commence on the date the City receives the metes and bounds legal descriptions for the Dedicated Land and the Purchased Land for the Agreed Boundary as provided in Section 2, and all documents specified in Section 8.1 and 8.3 of this Agreement shall expire on the 90th day thereafter. (City acknowledges that if the Robertson Trust receives its grading permits described in Paragraph 9.10 below before the expiration of the Due Diligence Period, Robertson Trust will have no obligation to start grading the Purchased Land until after the expiration of the Due Diligence Period.) City may elect, by written notice to Robertson Trust at any time prior to the expiration of the Due Diligence Period to terminate this Agreement, which election shall be in City's sole and absolute discretion. If City desires to purchase the Land subject to the conditions precedent to Closing set forth in Section 9 of this Agreement, then on or before the expiration of the Due Diligence Period, City shall deliver (1) written notice to Robertson Trust and Escrow 504184.2 Holder of such election to proceed (the "City's Notice to Proceed"), electing to waive City's right of termination pursuant to this Section and proceed with the Closing subject to the remaining conditions set forth in this Agreement, and (2) the Deposit to the Escrow Holder. 8. ROBERTSON TRUST'S DELIVERIES. 8.1 Within (ten) 10 days after the opening of escrow, Robertson Trust shall deliver or cause to be delivered to City all of the following at Robertson Trust's sole cost and expense: 8.1.1 Current preliminary title report for PA 12, issued by Title Company, accompanied by copies of all documents referred to in the report (collectively, the "Preliminary Report"): 8.1.2 To the extent in Robertson Trust's possession or control, environmental reports, environmental audits, soils reports, site plans, engineering reports and plans, traffic reports, landscape plans, plans and specification for any Improvements, structural calculations, floor plans, and other reports or documents of significance to the Purchased Land; 8.1.3 All governmental permits and approvals relating to the Purchased Land, other than those issued by City itself; and 8.1.4 A Natural Hazard Disclosure Report. Escrow Holder is hereby instructed to order such Report and deliver copies to both parties within 10 days after the opening of the Escrow. 8.2 Within (five) 5 days following Robertson Trust's receipt of City's written request therefor, Robertson Trust shall deliver to City such other non-proprietary and non- confidential information relating to the Purchased Land that is reasonably requested by City in written notice to Robertson Trust during the Due Diligence Period, to the extent such information either is in the possession or control of Robertson Trust (collectively, the "Other Documents"). 8.3 By not later than the 10th day after escrow opens, Robertson Trust shall obtain and deliver to City the environmental study(ies) described in Paragraph 3.2 of the Parkland Agreement. 9. CONDITIONS PRECEDENT TO CLOSING. The following are conditions precedent to City's obligation to acquire the Purchased Land (the "Conditions Precedent"). The Conditions Precedent are intended to be for the benefit of City or Robertson Trust, as indicated below ("Benefited Party"), and may be waived only by the Benefited Party(ies) in writing. Unless an earlier time is specified in this Agreement, all Conditions Precedent must be satisfied or waived prior to the Closing Date. In the event of the failure of the timely satisfaction of any of the Conditions Precedent due to a cause or causes beyond the control of the Benefited Party(ies) with respect to such Condition Precedent, the Benefited Party(ies) shall have the right, but not the obligation, to terminate this Agreement. In the event of such termination, neither party shall have any further obligations to the other under this 504184.2 Agreement (except under provisions of the Agreement which specifically state that they survive termination). 9.1 City's Representations and Warranties. All of the City's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made and shall be true and correct and shall be deemed reaffirmed by City as of the Closing Date. This Condition Precedent is for the benefit of Robertson Trust only. 9.2 City's Duties and Obligations. City shall have fully complied with all of City's duties and obligations contained in this Agreement. This Condition Precedent is for the benefit of Robertson Trust only. 9.3 Due Diligence. Prior to expiration of the Due Diligence Period, City shall have duly and timely delivered City's Notice to Proceed. This Condition Precedent is for the benefit of both City and Robertson Trust. 9.4 Robertson Trust's Representations and Warranties. All of Robertson Trust's representations and warranties contained in or made pursuant to this Agreement shall have been true and correct when made and shall be true and correct and shall be deemed reaffirmed by Robertson Trust as of the Closing Date. If, for any reason, City becomes aware that any such representation or warranty is no longer true and correct as of the Closing Date, City will give Robertson Trust written notice of the untrue or incorrect matter and a period of 30 days to correct it. If Robertson Trust timely corrects such matter to City's reasonable satisfaction, this Condition Precedent shall be deemed waived and satisfied. This Condition Precedent is for the benefit of City only. 9.5 Robertson Trust's Duties and Obligations. Robertson Trust shall have fully complied with all of Robertson Trust's duties and obligations contained in this Agreement and the Parkland Agreement. This Condition Precedent is for the benefit of City only. 9.6 Title Policy. Prior to expiration of the Due Diligence Period, City shall have received the unconditional commitment of Title Company to issue the Title Policy upon the Closing in the form approved by City. This Condition Precedent is for the benefit of City only. City's delivery to Escrow Holder of City's Notice to Proceed shall constitute City's satisfaction and waiver of this contingency; provided, however, if the Title Policy is subsequently amended to add a new Schedule B Exception, City shall have the right, as a condition precedent to purchasing the Purchased Land, to reasonably approve such new title exception; City's failure to disapprove such new exception within 20 days after the Title Company notifies City in writing of such new exception shall constitute City's approval of such new title exception. 9.7 Property Vacant. The Land shall be vacant and any lease affecting the Land shall have expired or terminated. This Condition Precedent is for the benefit of the City only. 9.7.1 Lease Indemnity. Robertson Trust shall reimburse, indemnify, defend and hold harmless City from any and all causes of action, claims, demands, loses, liabilities, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) arising as a result of any claims by the former tenant (Parkway Nursery) regarding its 504184.2 rights in or to the Land. The indemnity provisions of this Section 9.7.1 shall survive the any termination of this Agreement. 9.8 Grading. The Purchased Land shall have been rough graded (with pad(s), slopes to a uniform 2% grade and to a standard which elevates it out of the existing floodplain), according to the Special Use Permit standards of CMC 21.110.030, and to the reasonable satisfaction of the City Engineer at the Closing Date. City shall pay for these reasonable grading costs, in accordance with the provisions in Paragraph 3.5 of the Parkland Agreement and the provisions in Paragraphs 3 and 3.1 of this Agreement. Robertson Trust shall use its commercially reasonable best efforts to satisfy this Condition Precedent by July 1, 2008, and if grading is not completed by December 31, 2008, City shall have the right to terminate this Agreement with no obligation to reimburse Robertson Trust for any grading costs incurred prior to that date. Moreover, no additional building permits will be issued for the East or West Villages and the provisions of Section 3.6 of the Parkland Agreement shall apply. This Condition Precedent is for the benefit of City only. 9.9 Metes and Bounds Description. The Purchased Land shall be designated by metes and bounds legal description pursuant to the Subdivision Map Act (Government Code § 66428(a)(2)). The Robertson Trust shall prepare the metes and bounds legal descriptions and plat maps, subject to reasonable approval of the City Engineer. The City's Due Diligence period shall not commence until the metes and bounds descriptions of the Purchased Land and Dedicated Land have been received by the City. During the Due Diligence Period, the City Engineer shall review and either approve or disapprove such metes and bounds legal descriptions. This Condition Precedent is for the benefit of both City and Robertson Trust. 9.10 Permits and Approvals. A Special Use Permit, Hillside Development Permit and Grading permit for development of the Robertson Ranch Park shall have been issued for PA 12 by the City. The California Department of Fish and Game, U.S. Fish and Wildlife Service and Army Corp of Engineers Permit must be obtained by Robertson Trust prior to grading that portion of the Land within the wetlands area of PA 12. This Condition Precedent is for the benefit of both City and Robertson Trust. Robertson Trust shall use its commercially reasonable best efforts to obtain all of such permits as soon as reasonably practicable. 9.11 Access. The Land shall have legal access to Cannon Road via Street A (as shown on the Master Plan), which shall be constructed by the fee owner of East Village. In addition to required improvements to Cannon Road and El Camino Real, Street A will be an internal all weather two lane paved access to PA 12. Water, sewer and electricity shall be provided to the PA 12 boundary by the fee owner of the East Village, prior to or concurrent with development of the Robertson Ranch Park, to the reasonable satisfaction of the City Engineer. This Condition Precedent is for the benefit of City only. City's delivery to Escrow Holder of City's Notice to Proceed shall constitute City's satisfaction and waiver of this contingency. 9.12 Planning Commission. The Planning Commission shall have made a General Plan consistency finding and shall have approved the environmental review pursuant to the California Environmental Quality Act. This Condition Precedent is for the benefit of both City and Robertson Trust. City's delivery to Escrow Holder of City's Notice to Proceed shall constitute City's satisfaction and waiver of this contingency. 504184.2 9.13 City Council. On or before the date that the Master Plan for Robertson Ranch is approved, the City Council shall have duly approved the terms of this Agreement and authorized the City's performance of the terms thereof (subject to both parties' satisfaction of the conditions precedent to closing in this Section 9). This Condition Precedent is for the benefit of both City and Robertson Trust. City's delivery to Escrow Holder of City's Notice to Proceed shall constitute City's satisfaction and waiver of this contingency. 9.14 No Change. There shall be no material adverse change, in City's reasonable determination, in the information or items reviewed and approved by City during the Due Diligence Period. This Condition Precedent is for the benefit of City only. 10. DELIVERIES AT CLOSING. 10.1 Robertson Trust's Deliveries. At or before the Closing, Robertson Trust shall: (i) deliver to Escrow Holder a duly executed and acknowledged Deed; (ii) deliver to Escrow Holder a duly executed affidavit that Robertson Trust is not a "foreign person" within the meaning of Section 1445(e)(3) of the Internal Revenue Code of 1986 and any affidavit required by California law pursuant to legal requirements similar to the requirements of the foregoing Internal Revenue Code section (collectively, the "Non-Foreign Status Affidavits"): (iii) deliver to City such declarations of trust, agreements or other documents relating to Robertson Trust, its trustees or beneficiaries and/or the Land as may be reasonably required by Title Company to issue the Title Policy; (iv) deliver to Escrow Holder full releases or reconveyance of all monetary encumbrances affecting the Land (other than the current, non- delinquent real property taxes and assessments billed and paid as a part of the real property tax bill), and such bond, indemnity or other arrangements, as shall be necessary to cause the Title Company to issue title to the Land as vested in City in fee simple without any exception for such matters (the "Releases and Reconveyances"); (v) deliver to Escrow Holder a closing statement in form and content prepared by Escrow Holder and satisfactory to City and Robertson Trust (the "Closing Statement") duly executed by Robertson Trust; and (vi) deliver to City any other instruments, records or correspondence called for hereunder which have not previously been delivered. City may waive compliance on Robertson Trust's part under any of the foregoing items by an instrument in writing. 10.2 City's Deliveries. At or before the Closing, City shall: (i) deliver to Escrow Holder the Closing Statement duly executed by City; and (ii) deliver to Escrow Holder, in immediately available funds, a cash sum equal to the Purchase Price, subject to any credits, deductions, offsets or other adjustments provided for in this Agreement. 10.3 Additional Deliveries. Robertson Trust and City shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to close the Escrow and consummate the transactions contemplated by this Agreement, including but not limited to such legal descriptions, plat maps or other documents as may be required in order to satisfy the Condition Precedent set forth in Section 9.9. 11. CLOSING PROCEDURES. Upon the Closing, Escrow Holder shall: (i) submit the Deed along with the City's Certificate of Acceptance of the IOD to the County Recorder for the County of San Diego, California, for recordation in the Official Records of such 504184.2 county; (ii) deliver to City originals of the Non-Foreign Status Affidavits duly executed by Robertson Trust; (iii) deliver to Title Company the Releases and Reconveyances and any other documents delivered in connection with the issuance of the Title Policy; and (iv) deliver to Robertson Trust cash equal to the Purchase Price, less applicable prorations in accordance with Section 11.1 below, pursuant to the Closing Statement. In addition, the parties acknowledge that Section 6045(e) if the United States Internal Revenue Code and the regulation promulgated thereunder (collectively, the "Reporting Requirements") require an information return to be made to the United States Internal Revenue Service, and a statement to be furnished to Robertson Trust, in connection with the "Transaction" (as described in the Reporting Requirements). Escrow Holder is either (i) the person responsible for closing the Transaction or (ii) the disbursing title escrow company that is most significant in terms of gross proceeds disbursed in connection with the Transaction. Robertson Trust and City designate Escrow Holder as the "Reporting Person" (as defined in the Reporting Requirements) with respect to the Transaction. Escrow Holder shall perform all duties that are required by the Reporting Requirements to be performed by the Reporting Person for the Transaction. Robertson Trust and City shall furnish to Escrow Holder, in a timely manner, any information requested by Escrow Holder and necessary for Escrow Holder to perform its duties as Reporting Person for the Transaction. 11.1 Prorations. The following are to be apportioned as of the Closing Date (with City being deemed to own the Purchased Land for the entire day of the Closing Date), as follows: 11.1.1 Real Property Taxes and Special Assessments. General real property taxes and assessments billed and payable as a part of the real property tax bill for all times prior to the Closing shall be paid by Robertson Trust. General real property taxes and assessments billed and payable as a part of the real property tax bill payable for the current fiscal year shall be prorated by Robertson Trust and City as of the Closing Date. Any other bonds or assessments against the Land, including interest payable thereon, shall be assumed by City (except for assessments referenced in Paragraph 4 of the Parkland Agreement, which are not City's obligation). 11.1.2 Other Apportionments. Other recurring costs, fees or liabilities relating to the ownership of the Purchased Land, if any, shall be apportioned as of the Closing Date, such that Robertson Trust shall be responsible for all such costs, fees and liabilities accruing with respect to the period prior to the Closing Date and City shall be responsible for all such costs, fees and liabilities accruing with respect to the period from and after the Closing Date. The City shall not be obligated to provide any Master Plan conditions for Cannon Road, El Camino Real, and sewer, water or roadway frontage improvements or be responsible for any share of the cost of the Master Plan improvement obligations, whether or not such improvement obligations are attributable to the Parkland (other than those fixed grading-related costs that City has expressly agreed to reimburse to Robertson Trust under Paragraph 3.5 of the Parkland Agreement, also referred to as the "Grading Price" component of the Purchase Price under Paragraph 3 of this Agreement.) 11.2 Closing Costs. Robertson Trust shall pay all City and/or County documentary transfer taxes in connection with the sale of the Purchased Land and the premium for a CLTA Owner's Policy of Title Insurance. City shall pay any additional cost in excess of 504184.2 10 the premium for a standard CLTA Owner's Policy of Title Insurance, including the survey cost as provided for in Section 2 of this Agreement, in order to obtain ALTA extended insurance coverage, and any Endorsements to the Title Policy required by City. Each party shall be solely responsible for the costs of its own legal counsel in connection with this transaction. Escrow fees and other closing costs not allocated pursuant hereto shall be shared equally by City and Robertson Trust; provided that in the event this Agreement is terminated due to the default by either party under this Agreement, the defaulting party shall be solely responsible for any Escrow and/or title cancellation fees and/or charges. 12. REPRESENTATIONS. WARRANTIES AND COVENANTS OF ROBERTSON TRUST. As of the date hereof, Robertson Trust represents to, and covenants with City as follows. If Robertson Trust discovers, prior to the Closing Date, any new information that affects its representations below, Robertson Trust will promptly disclose such new information to City (in which event the provisions in Paragraph 9.4 above shall apply): 12.1 For purposes of this Agreement, the term "Knowledge" means to the actual knowledge of Brian Robertson and Gary Robertson, without any duty of inquiry or investigation, on the date the representation is made. To Robertson Trust's Knowledge, (i) the Purchased Land, and the use and operation of the Purchased Land, are in compliance with all applicable federal, state and local laws, statutes, rules, regulations, ordinances, orders, codes and other requirements (collectively, all "Laws"), including, without limitation, all Laws respecting zoning, land use, and Hazardous Materials (defined in Paragraph 12.6 below). 12.2 To Robertson Trust's Knowledge, Robertson Trust is not aware of any inaccuracies contained within the materials delivered to City pursuant to Section 8 above, or of any new information or change in circumstances concerning the Purchased Land or materials delivered to City. 12.3 Except as specifically disclosed by Robertson Trust to City in writing, at the time of Closing there will be no outstanding written or oral contracts made by Robertson Trust for any improvements to the Land which have not been fully paid, and Robertson Trust shall cause to be discharged all mechanics' and materialmen's liens arising from any labor materials furnished to the Land prior to the time of Closing. 12.4 To Robertson Trust's Knowledge, (i) there are no condemnation, environmental, zoning or other land-use regulation proceedings either instituted or planned to be instituted by a government entity other than City, which would be detrimentally affect the ownership, use, operation or value of the Purchased Land, nor has Robertson Trust received notice of special assessment proceedings affecting the Land, (ii) there is no litigation pending or threatened against Robertson Trust that arises out of the ownership of the Purchased Land or that might detrimentally affect the value, ownership, use or operation of the Purchased Land or the ability of Robertson Trust to perform its obligations under this Agreement (Robertson Trust shall notify City promptly of any such proceeding or litigation of which Robertson Trust becomes aware) and (iii) there is no dispute with any former tenant of the Land and no outstanding obligations related to any such tenancy, (iv) there are no liens or encumbrances on the Purchased Land, other than as shown on the Preliminary Report or the Title Policy. 504184.2 11 12.5 To Robertson Trust's Knowledge, (i) Robertson Trust has obtained all licenses, permits, variance, approvals, authorizations, easements and rights of way required from all governmental authorities having jurisdiction over the Land or from private parties for the present use, operation and occupancy of the Land, and (ii) the Land is not dependant on any other property for compliance with zoning regulations. 12.6 Except as specifically disclosed by Robertson Trust to City in writing, to Robertson Trust's Knowledge neither Robertson Trust nor any prior owner or occupant of the Land engaged in or permitted any activity on the Land involving the release or disposal of any "Hazardous Materials" (as hereinafter defined), and to Robertson Trust's Knowledge, Robertson Trust is not aware of, nor has Robertson Trust received written notice from any governmental authority concerning, the removal of any Hazardous Materials from the Land. For purposes of this Agreement, the term "Hazardous Materials" shall mean any toxic or hazardous waste, material or substance, including, without limitation, asbestos, petroleum, petroleum products, underground storage tanks now or previously containing any other Hazardous Materials, substances defined as "hazardous substances", "hazardous waste" or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec 9061, et seq. ("CERCLA"); Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801: and Resource Conservation and Recovery Act, 42 U.S.C. Sec 6901 et seq.; and other substances defined as hazardous waste and hazardous substances in applicable state or local Laws and/or in any regulations and publications promulgated pursuant to said Laws. Robertson Trust hereby discloses that the Land has been used for agricultural purposes and, as such, the Land might contain pesticides and other Hazardous Materials consistent with agricultural use of the Land. Nothing herein shall be construed to limit Robertson Trust's obligations described in Paragraphs 3.2 and 3.4 of the Parkland Agreement. 12.7 Except as specifically disclosed by Robertson Trust to City in writing, to Robertson Trust's Knowledge, (1) there are no obligations in connection with the Land which will be binding upon City or affect the Land after Closing and (2) there are no assessments or bonds assessed or proposed to be assessed, against the Land, except matters which are set forth in the Preliminary Report and assessments imposed by City. Except as specifically disclosed by Robertson Trust to City in writing, to Robertson Trust's Knowledge there are no existing or proposed easements, covenants, restrictions, agreements or other documents which affect title to the Land and which are not disclosed by the Preliminary Report or the Master Plan. 12.8 Robertson Trust consists of three trusts created under the laws of the State of California; this Agreement and all documents executed by Robertson Trust which are to be delivered to City at the Closing are and at.the time of Closing will be duly authorized, executed and delivered by Robertson Trust, are and at the time of Closing will be legal, valid and binding obligations of Robertson Trust enforceable against Robertson Trust in accordance with their respective terms, are and at the time of Closing will be sufficient to convey title (if they purport to do so), and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which Robertson Trust or the Land is subject. Robertson Trust has obtained all necessary authorizations, approvals and consents to the execution and delivery of this Agreement and consummation of the transactions contemplated hereby. 504184.2 12 12.9 Robertson Trust is the legal and equitable owner of the Land, with full right to convey the same, and without limiting the generality of the foregoing, Robertson Trust has not granted any option or right of first refusal or first opportunity to any party to acquire any interest in any of the Land. The Robertson Trust has not sold, transferred or conveyed any air rights or other development rights with respect to the Land. 13. REPRESENTATIONS AND WARRANTIES OF CITY. City hereby represents and warrants to Robertson Trust as follows: City is a municipal corporation, duly formed and validly existing and good standing under the laws of the State of California; this Agreement and all documents executed by City which are to be delivered to Robertson Trust at the Closing are and at the time of Closing will be duly authorized, executed and delivered by City, are and at the time of Closing will be legal, valid and binding obligations of City enforceable against City in accordance with their respective terms, and do not and at the time of Closing will not violate any provision of any agreement or judicial order to which City is subject. City has obtained all necessary authorizations, approvals and consents to the execution and delivery of this Agreement and consummation of the transactions contemplated hereby. 14. CONTINUATION AND SURVIVAL. All representations, warranties and covenants by the respective parties contained herein or made in writing pursuant to this Agreement are intended to and shall be deemed made as of the date of this Agreement or such writing and again at the Closing (as applicable), shall be deemed to be material, and shall survive the execution and delivery of this Agreement, the Deed and the Closing; provided, however, the representations, warranties and covenants in Sections 12 and 13 shall survive the Closing. In the event either party is notified in writing by the other party of the breach of any of the representations or warranties of such notifying party contained in this Agreement and, notwithstanding such notification, the party receiving such notification proceeds with the consummation of the Closing, such notifying party shall not be liable to the other party as a result of such breach. 15. INDEMNITY. The provisions of this Section 15 shall survive the Closing. 15.1 By Robertson Trust. Robertson Trust shall reimburse, indemnify, defend and hold harmless City from any and all causes of action, claims, demands, losses, liabilities, costs or expenses arising as a result of any breach of representation or warranty made in this Agreement by Robertson Trust and/or from any transactions or occurrences relating to the Land prior to Closing Date, other than as a result of the acts of City and/or any of City's employees, agents, representatives, contractors or invitees upon the Land prior to the Closing Date. 15.2 By City. City shall reimburse, indemnify, defend and hold harmless Robertson Trust from any and all causes of action, claims, demands, losses, liabilities, costs or expenses arising as a result of any breach of representation or warranty made in this Agreement by City and/or from any transactions or occurrences relating to the Land prior to the Closing Date other than as a result of the acts of Robertson Trust and/or any of Robertson Trust's employees, agents, representatives, contractors or invitees upon the Land after the Closing Date or as provided in Section 3.4 of the Parkland Agreement. 504184.2 13 16. RISK OF LOSS. 16.1 Eminent Domain. In the event a governmental entity (other than City or a redevelopment or other agency, district or subdivision thereof) commences eminent domain proceedings to take any portion of the Land after the date hereof and prior to the Closing, then City shall have the option to terminate the Agreement by written notice to Robertson Trust within ten (10) business days after City first learns of such commencement. In the event of such termination, City and Robertson Trust shall each be liable for one-half of any Escrow fees or charges, and neither party shall have any further liability or obligation under this Agreement. In the event a governmental entity commences eminent domain proceedings to take any part of the Land after the date hereof and prior to the Closing and this Agreement is not terminated pursuant to the foregoing, then the Closing shall occur as scheduled notwithstanding such proceeding; provided, however, that Robertson Trust's interest in all awards arising out of such proceedings shall be assigned to City as of the Closing or credited to City if previously received by Robertson Trust. Robertson Trust's and City's obligations pursuant to the immediately preceding sentence shall survive the Closing. 16.2 Damage and Destruction. There are no improvements on the Purchased Land. If an earthquake or other natural disaster damages the land so that it cannot be improved as a park without remediation, the City shall have the option to terminate this Agreement by so notifying Robertson Trust in writing within 30 days of the occurrence of such disaster, in which event this Agreement shall terminate based on the failure of a contingency and the Deposit shall be returned to the City. Except as noted above, the parties waive each of their rights to terminate this Agreement as the result of damage or destruction to the Purchased Land. 17. POSSESSION. Possession of the Land shall be delivered to City on the Closing Date. 18. CONTRACTS AFFECTING THE PURCHASED LAND After the date of Robertson Trust's execution of this Agreement, Robertson Trust shall not, without first obtaining City's written consent, enter into any (i) new lease or amendment to any existing lease affecting the Purchased Land or (ii) new contract or amendment to any existing contract affecting the Purchased Land (unless such contact shall by its own terms expire, or may be terminated, upon or before the Closing). 19. CONDITION OF THE PURCHASED LAND. City acknowledges and agrees that, as of the Closing Date, City will have examined and inspected the Purchased Land and will be satisfied with the physical and environmental condition, quality, quantity and state of repair of the Purchased Land in all respects and will have determined that the same will therefore be acceptable to City. The Land shall be free of debris and personal property at Closing Date. 19.1 Purchased Land Sold "AS IS" and Without Warranty. CITY ACKNOWLEDGES THAT CITY IS PURCHASING THE PURCHASED LAND SOLELY IN RELIANCE ON CITY'S OWN INVESTIGATION. CITY FURTHER ACKNOWLEDGES THAT, EXCEPT FOR ROBERTSON TRUST'S EXPRESS REPRESENTATIONS IN SECTION 12 ABOVE, THE PURCHASED LAND IS BEING SOLD IN "AS IS, WHERE IS" CONDITION AND WITH ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE. City 504184.2 14 expressly acknowledges that, except as otherwise expressly specified herein, Robertson Trust makes and has made no representations or warranties whatsoever, express or implied, or arising by operation of law with respect to the Purchased Land or any matter related thereto, including but not limited to any representation or warranty as to condition, merchantability, or fitness of the Purchased Land for a particular use or purpose, any representation or warranty as to the presence or absence of Hazardous Materials in, on, under, or migrating to or from the Purchased Land (although nothing herein shall affect Robertson Trust's obligations in Paragraphs 3.2 and 3.4 of the Parkland Agreement, or otherwise pursuant to applicable law), or any representation or warranty as to any of the following matters: (1) soils, seismic, hydrological, geological, and topographical conditions and configurations; (2) availability of adequate schools and fire and police protection; (3) present, past, or future conformity of the Purchased Land with planning, building, zoning, subdivision, and development statutes, ordinances, regulations, and permits, the general plan, and the specific plan; (4) the condition of title to the Purchased Land, including but not limited to the existence of any easement, encroachment, or encumbrance, whether or not a matter of public record, and whether or not visible upon inspection of the Purchased Land (although nothing herein shall affect Robertson Trust's obligations in Paragraph 3.2 and 3.4 of the Parkland Agreement); and (5) any other matter relating to the Purchased Land or to the development or operation of the Purchased Land, including but not limited to value, feasibility of development, cost, governmental permissions or entitlements, marketability, and investment return. 20. BROKERS AND FINDERS. Neither party has had any contact or dealings regarding the Land, or any communication in connection with the subject matter of this transaction, through any real estate broker or other person who can claim a right to a commission or finder's fee in connection with the sale contemplated herein. In the event that any other broker or finder claims a commission or finder's fee based upon any contact, dealings or communication, the party through whom the broker or finder makes its claim shall be responsible for said commission or fee and all costs and expenses (including, without limitation, reasonable attorneys' fees) incurred by the other party in defending against the same. The party through whom any other broker or finder makes a claim shall hold harmless, indemnify and defend the other party hereto, its successors and assigns, agents, employees, officers and directors, and the Land from and against any and all obligations, liabilities, claims, demands, liens, encumbrances and losses (including, without limitation, attorneys' fees), whether direct, contingent or consequential, arising out of, based on, or incurred as a result of such claim. The provisions of this Section shall survive the Closing or termination of the Agreement. 21. PARK REQUIREMENTS. Robertson Trust acknowledges that its agreement to sell the Land pursuant to this Agreement shall not relieve Robertson Trust from, or constitute a credit against, any obligation Robertson Trust may have to City to dedicate the Dedicated Land in order to satisfy the Master Plan's park requirement. 22. NOTICES. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand delivery, (ii) one business day after being deposited with Federal Express or another reliable overnight courier service for next day delivery, (iii) upon facsimile transmission (except that if the date of such transmission is not a business day, then such notice shall be deemed to be given on the first business day following such transmission), or (iv) two business days after being 504184.2 15 deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, and addressed as follows: If to Robertson Trust:Mr. Brian Robertson 1060 Old A von Road Deary, ID 83823 and Mr. Gary Robertson 29408 Paso Robles Road Valley Center, CA 92082 With copies to:Alan J. Zuckerman, Esq Musick, Peeler & Garrett LLP 225 Broadway, Suite 1900 San Diego CA 92101-5028 (619) 525-2529 (619) 231-1234 fax and Mr. Ken Cablay SeaBourne Development P.O. Box 4659 Carlsbad, CA 92018-4659 (760) 594-4200 (714) 427-0030 fax If to City: With a copy to: Raymond R. Patchett, City Manager City of Carlsbad 1200 Carlsbad Village Dr Carlsbad CA 92008 (760) 434-2821 (760) 720-9461 fax Ronald R. Ball, City Attorney City of Carlsbad 1200 Carlsbad Village Dr Carlsbad CA 92008 (760)434-2891 (760) 434-8367 fax 504184.2 16 or such other addresses as either party may from time to time specify in writing to the other. 23. SUCCESSORS AND ASSIGNS. Neither this Agreement nor the rights of either party hereunder may be assigned without the consent of the other party, which consent shall not be unreasonably denied or delayed. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and permitted assigns. 24. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. 25. TIME OF THE ESSENCE. Time is of the essence with respect to each party's obligations in this Agreement. 26. SEVERABILITY. If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect. 27. FURTHER ASSURANCES. Each party will, whenever and as often as it shall be requested to do so by the other party, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered any and all such further conveyances, assignments, approvals, consents and any and all other documents and do any and all other acts as may be necessary to carry out the intent and purpose of this Agreement. 28. MERGER OF PRIOR AGREEMENTS; AMENDMENTS. This Agreement and the exhibits and portions of the Parkland Agreement referenced herein constitute the entire Purchase Agreement between the parties. This Agreement is also Exhibit "F" to the Parkland Agreement. This Agreement, along with the Parkland Agreement, supersedes all prior agreements and understandings between the parties relating to the subject matter hereof. This Agreement may be amended or modified only by written instrument executed by Robertson Trust and City. 29. COUNTERPARTS; PHOTOCOPIES. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument. Photocopied signature pages delivered by facsimile or as PDF or JPEG file attachments to emails shall be deemed the same as original signatures. 30. WAIVER OF RELOCATION ASSISTANCE. Robertson Trust is and has been made aware of the provisions of the Relocation Assistance Act (California Government Code § 7260 et seq.), and herein agrees to waive any and all benefits and protection of that Act. Robertson Trust agrees to this waiver after consulting with its attorneys, and being advised of the full implications of this waiver. 31. TAX-DEFERRED EXCHANGE. City shall cooperate fully in any tax- deferred exchange (including, without limitation, pursuant to Internal Revenue Code § 1031 and/or § 1033) which Robertson Trust may elect in its sole discretion to conduct with respect to 504184.2 17 this transaction, provided that the same shall be at no additional expense to City. The foregoing shall include, without limitation, City's execution and delivery of all appropriate documents consenting to the assignment of Robertson Trust's rights and obligations hereunder and in the Escrow to one or more tax-deferred exchange accommodators. 32. CONSTRUCTION. Whenever the context of this Agreement requires the same, the singular shall include the plural and the masculine, feminine and neuter shall include the others. Without limitation, any defined term used in the plural shall refer to all members of the relevant class, and any defined term used in the singular shall refer to any number of the relevant class. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Headings at the beginning of each section and subsection are solely for convenience of reference and are not a part of this Agreement. 33. INDEPENDENT COUNSEL. City and Robertson Trust each acknowledge that: (i) it has been represented by independent counsel in connection with this Agreement; (ii) it has executed this Agreement with the advice of such counsel; and (iii) this Agreement is the result of negotiations between City and Robertson Trust and the advice and assistance of their respective counsel. 34. BUSINESS DAYS. If the (i) stated Closing Date or (ii) last day for performance of an act falls upon a day during which Escrow Holder is not open for business, the Closing Date or such last day, as the case may be, shall be the next following regular business day of Escrow Holder. 35. CITY'S REMEDIES UPON ROBERTSON TRUST DEFAULT. If Robertson Trust defaults on any of its obligations under this Agreement, the City shall have all rights and remedies available to it by law, including but not limited to the remedy of specific performance of this Agreement. 36. LIQUIDATED DAMAGES UPON CITY'S DEFAULT. IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT WHICH RESULTS IN A FAILURE TO CLOSE, THEN IN ANY SUCH EVENT, ROBERTSON TRUST SHALL THEREUPON BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. CITY AND ROBERTSON TRUST AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH ROBERTSON TRUST'S DAMAGE BY REASON OF CITY'S DEFAULT UNDER THIS AGREEMENT, ESPECIALLY SINCE ROBERTSON TRUST MAY HAVE INCURRED SIGNIFICANT GRADING COSTS RELATING TO THE PURCHASED LAND PRIOR TO CITY'S DEFAULT. ACCORDINGLY, CITY AND ROBERTSON TRUST AGREE THAT IN THE EVENT OF DEFAULT BY CITY UNDER THIS AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO AWARD ROBERTSON TRUST "LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT REPRESENTED BY THE DEPOSIT (AS DEFINED IN SECTION 1.4 HEREOF) PLUS ANY AND ALL ACCRUED INTEREST THEREON. 504184.2 Jg THEREFORE, IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT, WHICH RESULTS IN A FAILURE TO CLOSE, ROBERTSON TRUST MAY INSTRUCT THE ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER SHALL IMMEDIATELY PAY OVER TO ROBERTSON TRUST THE DEPOSIT, IF HELD BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON AND ROBERTSON TRUST SHALL BE RELIEVED FROM ALL OBLIGATIONS AND LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW. NOTHING IN THIS SECTION 37 SHALL IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF CITY. NOTWITHSTANDING THE FOREGOING, IF CITY, IN BAD FAITH, INTERFERES WITH OR MAKES ANY ATTEMPT TO INTERFERE WITH ROBERTSON TRUST'S RECEIVING OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION 37, INCLUDING WITHOUT LIMITATION THE GIVING OF ANY NOTICE OR INSTRUCTIONS TO ESCROW HOLDER NOT TO DELIVER THE DEPOSIT TO ROBERTSON TRUST, AND ROBERTSON TRUST LATER PREVAILS IN ANY ACTION TO RECOVER THOSE AMOUNTS, ROBERTSON TRUST SHALL HAVE THE RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO CITY, AND ROBERTSON TRUST SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST CITY PROVIDED AT LAW AND IN EQUITY. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISIONxCONTAINEETtN THIS SECTION 37. City's Initials' [fl/f Robertson Trust's Initials 37. NO PARTNERSHIP. This Agreement is not intended to create a partnership between City and Robertson Trust. -SIGNATURES ON FOLLOWING PAGE- 504184.2 19 THEREFORE, IF CITY COMMITS A DEFAULT UNDER THIS AGREEMENT, WHICH RESULTS IN A FAILURE TO CLOSE, ROBERTSON TRUST MAY INSTRUCT THE ESCROW HOLDER TO CANCEL THE ESCROW WHEREUPON ESCROW HOLDER SHALL IMMEDIATELY PAY OVER TO ROBERTSON TRUST THE DEPOSIT, IF HELD BY ESCROW HOLDER, TOGETHER WITH ALL INTEREST ACCRUED THEREON AND ROBERTSON TRUST SHALL BE RELIEVED FROM ALL OBLIGATIONS AND LIABILITIES HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER SHALL CANCEL THE ESCROW. NOTHING IN THIS SECTION 37 SHALL IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF CITY. NOTWITHSTANDING THE FOREGOING, IF CITY, IN BAD FAITH, INTERFERES WITH OR MAKES ANY ATTEMPT TO INTERFERE WITH ROBERTSON TRUST'S RECEIVING OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION 37, INCLUDING WITHOUT LIMITATION THE GIVING OF ANY NOTICE OR INSTRUCTIONS TO ESCROW HOLDER NOT TO DELIVER THE DEPOSIT TO ROBERTSON TRUST, AND ROBERTSON TRUST LATER PREVAILS IN ANY ACTION TO RECOVER THOSE AMOUNTS, ROBERTSON TRUST SHALL HAVE THE RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO CITY, AND ROBERTSON TRUST SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST CITY PROVIDED AT LAW AND IN EQUITY. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION OBTAINED IN THIS SECTION 37. City's Ini£iflrsP£_ Robertson Trust's Initials 37. NO PARTNERSHIP. This Agreement is not intended to create a partnership between City and Robertson Trust. -SIGNATURES ON FOLLOWING PAGE- 504184.2 19 SIGNATURE PAGE FOR PARKLAND PURCHASE AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the date first written above. Robertson Trust: Brian Robertson, Co-Successor Trustee of the Robertson Family Trust Dated April 19,1995 Daled October 8,1976 Gary Robeptson, Co-Successor Trustee oftkeKobertson Family Trust Dated April 19, 1995 Brian Robertson, Co-Successor Trustee of The Elsie M. Kelly Irrevocable Trust Dated June 19, 1989 Brian Robertson, Co-Successor Trustee Under Declaration of Trust Dated October 8, 1976 Gary Rpbeftson, Co^Sticcessor Trustee ^rfrThe Elsie M. Kelly Irrevocable Trust Dated June 19,1989 504184.2 B Claude A.", Mayor 20 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of. On O&/V 11, SLQD7 . before me, personally Date appeared A, Name and Title of Officer (e.g., "Jane tfoe, Notary Publi Pofel*<£. Name(s) of Signer(s) RONNA S. STtCKROD Commission* 1520450 Notory Pubic - CoMomta Son Otoop County ^personally known to me D proved to me on the basis of satisfactory evidence to be the person(X) whose name(fe£js/e.je subscribed tpJhe within instrument and acknowledged^) me that (he)sh^Zthey executed the same i authorized capacity(ijtes), and that signature^ on the instrument the person), or the entity upon behalf of which the person(s0 acted, executed the instrument. Place Notary Seal Above SS my hand-end official seal. O • Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: d Docum : (~2trfclL^A A~£> Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: C*-f*UE>£ $ Cm Individual EH Corporate Officer — Title(s): EH Partner — D Limited D General ID Attorney in Fact CD Trustee Cm Guardian or Conservator S^ Other: IRIGHTTHUMBPRINT OF SIGNER Signer Is Representing: Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder Call Toll-Free 1-800-876-6827 SIGNATURE PAGE FOR PARKLAND PURCHASE AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the date first written above. Robertson Trust: Brian Robertson, Co-SjiDcessor Truste* of me Robertson Dated April Gaw. Robertson, Co^-Successor Trustee of the Robertson Family Trust Dated April 19,1995 Brian Robertson, Co-Sup<5essor Trustee Under Declaration of Trust Dated October 8,1976 Gary^Robertson, Co-Successor Trustee Under Declaration of Trust Dated October 8,1976 Brian Robertson, Co-Suecessor Trustee of The Elsie M. Kejjy Irrevocable Trust Dated June 19, ^#89 Gar^Robertson, Co-Successor Trustee of The Elsie M. Kelly Irrevocable Trust Dated June 19,1989 City; By:. Claude A^''Bud" Lewis, Mayor 504184.2 20 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ) ) SS.) On January 2, 2007, before me, DIANE P. MENDOZA, a Notary Public in and for said County and State, personally appeared GARY ROBERTSON, personally known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his 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. Notary Public WAI* P. MENDOZA CommWon 91506295 N9*ory PuWc - CoHbmta Son Dtogo County .EMi EXHIBIT "1" TO PARKLAND PURCHASE AGREEMENT -Attach Perry & Shaw's 10/25/06 Grading Proposal Here- 504184.2 21 Perry & Shaw, Inc. General Engineering Construction 475 West Bradley El Cajon, CA 92040 (619)390-6500 Fax: (619) 390-8831 License No. A 719408 October 25,2006 SeaBoume Development Co. P.O. Box 4659 Carlsbad, CA 92018 Attn: Ken Cablay FAX (714) 427-0030 Re: ROBERTSON'S RANCH PUBLIC PORTION - 2nd REVISED ROUGH GRADING PROPOSAL Dear Sir, B1399 p/3 This proposal for the grading of the referenced site is based on the following information provided and the conditions listed below: I. PLANS AND SPECIFICATIONS: PLANS: . SPECIAL USE PERMIT FOR ROBERTSON RANCH PLANNING AREA 11 by O'Day Consulting, sheets 1-3 of 3, unapproved, print date of June 15,2006. . SPECIAL USE PERMIT FOR ROBERTSON RANCH PLANNING AREA 12 & 13 by O'Day Consulting, sheets 1-3 of 3, unapproved, print date of June 15, 2006. . Exhibit showing grading for storm drain construction for McMillin Robertsons Ranch project. SOILS REPORT: . GEOTECHNICAL EVALUATION OF THE ROBERTSON RANCH PROPERTY, CITY OF CARLSBAD by GeoSoils, Inc. Dated January 29, 2002. II. PROPOSAL: . Please note that this proposal is for that portion of work defined as the public portion only and is conditioned on all the work for the public and private work being performed at the same time. . The grading of the public portion is based on the anticipated grading of the pad for the installation of the McMillin Storm Drain being complete prior to the start of the grading of the public portion. ITEM DESCRIPTION QUAN UNIT PRICE PRICE PUBLIC WORK? P-1 Mobilization (Public) 1 LS $4,500.00 $4,500.00 Perry & Shaw, Inc. General Engineering Construction 475 West Bradley El Cajon, CA 92040 (619)390-6500 Fax:(619)390-8831 License No. A 719408 ITEM DESCRIPTION QUAN UNIT PRICE PRICE P-2 Clear and Grub / Fill Prep 1 LS $13,300.00 $13,300.00 SeaBourne Development ROBERTSON'S RANCH PUBLIC PORTION -21*" REVISED ROUGH GRADING PROPOSAL Ken Cablay October 25, 2006 Page 3 ITEM P-3 P-4 P-5 P-6 P-7 DESCRIPTION Remove and Recompact Mass Excavation Import from Private Portion Site Finish (Quantities Listed Below) Erosion Control (Estimated) a. Silt Fence b. Fiber Rolls c. Gravel Bags QUAN 28,000 21,516 37,439 1 2,620 2,800 1,500 CY CY CY LS LF LF EA UNIT PRICE $1.34 $1.34 $1.34 $32,300.00 $1.45 $2.40 $1.85 TOTAL PUBLIC PORTION OF WORK: PRICE $37,520.00 $28.831.44 $50,168.26 $32,300.00 $0.00 $3,799.00 $6,720.00 $2,775.00 $179,913.70 III. CONDITIONS OF PROPOSAL: 1. GENERAL CONDITIONS: a. Excluded from this proposal are plans, permits, handling/disposal of contaminated or hazardous materials, survey, soils inspection and bond costs. b. General terms and conditions of the contract including insurance, indemnity, pay schedule and release of retention to be negotiated. c. ADDITIONAL INSURED: CO 2010 -1185 additional Insured endorsement will not be provided. 2. SPECIFIC EXCLUSIONS: a. BURIED TRASH AND DEBRIS: The handling and disposal of buried trash and debris shall be at T&M plus 15%. 3. GRADING FOR ADJACENT IMPROVEMENTS: a. CANNON ROAD: i. The only grading along Cannon Road is that shown on the grading plan sheet 3 of 3 for PA 12 & 13. This work area is only that grading immediately adjacent to PA 12. ii. No grading for future work on Cannon Road considered. b. ELCAMINOREAL: i. The only grading along El Camino Real is that shown on the grading plan sheet 3 of 3 for PA 11. No grading for future work on El Camino Real considered 4. ITEM 1 - MOBILIZATION: a. This price is based on a single mobilization to perform the work. b. Mobilization is split proportionateley between public and private work based on anticipated total cost. 5. ITEM 2 - CLEAR AND GRUB / DEMOLITION: a. Included is the clearing and grubbing including haul off and disposal of all trees, shrubs, etc. Onsite. SeaBourne Development ROBERTSON'S RANCH PUBLIC PORTION - 2™ REVISED ROUGH GRADING PROPOSAL Ken Cablay October 25,2006 Page 4 b. Included is all initial fill prep including prewetting as may be required to initiate the work c. Included is the demolition of all surface and minor improvements onsite. 6. ITEM 4 - REMOVE & RECOMPACT: a. Quantities provided are based on removal depths per soils report. b. In agreement between Citv and Robertsons' the final cost of this item of work may vary depending on the actual quantity of Remove and Recomoact required bv Setts Engineer in the field. I. PUBLIC PORTION OF WORK: a. The work designated to be public is that portion shown on the exhibit provided and includes all work within this area. b. The public portion is charged the cost of import from the private portion for dirt required to complete the fills on the public portion. 8. UNIT PRICING: This proposal is presented as a unit priced proposal. All items bid on a unit price basis to be field measured for final pay quantity 9. BALANCE: The site is bid to balance. No import or export considered as a part of this proposal. 10. WATER: a. The purchase of water for work within the scope of this contract is not included as part of this proposal. b. Owner to provide a water hookup adjacent to the site with sufficient capacity / pressure available to service the project without the use of pumps. C. If water has to be brought to the site, then the water connection and highline to the site by Owner II. EROSION CONTROL: a. Erosion control is included. No plans provided, estimated items of work and quantities b. . Quantities and unit pricing are included. c. During course of construction erosion control, water will be controlled onsite and every reasonable effort shall be made to retain water onsite. The Owner shall maintain responsibility for the discharge or release of water from the site. 12. FINISH/TOLERANCES: a. All grading shall be one time to a +/- .20 Ft. finish for vertical tolerance at 90% compaction. b. No work by other trades hi any areas until grades are bought off by Owner. c. FINISH AREAS INCLUDED: i. Total Pad Area to be finished is 162,900 SF ii. Total Slope Area to be finished is 60,300 SF. iii. Total Basin Area is 39,900 SF. 13. FUEL CLAUSE: a. This proposal is based on a fuel cost of $2.41 per gallon including all taxes and wet hosing equipment. b. A fuel escalation clause will be incorporated into the contract. A significant change in the cost of fuel wOl cause a change in the cost of eroding the site within the agreement between Robertson and the Citv of Carlsbad Please contact me at (619) 390-6500 if there are any questions regarding this proposal. Sincerely, Perry & Shaw, Inc. Mike Shaw C£0_ 3 O C/3croO aa COoo CN| 5 <S *5 4 -5 l£ 0' 50' SCALE: 1" = 200* ROBERTSON RANCH PA 12 & 13 EXHIBIT 'H' GRADING PLAN CONSULT T S 2710 Loker Ave West Suite 100 Carlsbad, California 92008 760-931-7700 Fax: 760-931-8680 www.odayconsultants.com Civil Engineering Planning Processing Surveying 55 EXHIBIT "F TOXIC WASTE STATEMENT To the best current actual knowledge of the undersigned, without duty of inquiry, the Parkland (as defined in the Parkland Agreement for the Robertson Ranch Master Plan dated October 27, 2006) has not been used for the disposal or storage of toxic wastes pursuant to Section 25300 et seq. of the Health and Safety Code, except possibly to the extent related to the prior use of the site as agricultural land. This declaration satisfies the requirements of City of Carisbad Municipal Code section 21.38.060(5)(D). Dated: /0~~£~~7 ,2006 BRIAN ROBERTS0N, CO-SUCCESSOR TRUSTEE OFjtfE ROBERTSON FAMILY 1995 TRUST; dated April 19, 1995, as to an undivideoone-half interest BRIAN ROBERTSOJ^CO-SUCCESSOR TRUSTEE UNDEir DECLARATION OF TRUST, date^October 8, 1976, as to an undividedj?% interest BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEE O^THE ELSIE M. KELLY IRREVOCABLE TRUST, dated June 19, 1989, as to an undivided 43% interest GARY/ ROBERTSON, CO-SUCCESSOR TRUSTEE OF THE ROBERTSON FAMILY 1995 TRUST, dated April 19, 1995, as to an undivided one-halfitrterest GARV ROBERTSON, CO-SUCCESSOR TRUSTEE UNDER DECLARATION OF TRUST, dated October 8, 1976, as to an undivided 7% interest GARY ' ROBERTSON, CO-SUCCESSOR TRUSTEE OF THE ELSIE M. KELLY IRREVOCABLE TRUST, dated June 19, 1989, as to an undivided 43% interest Calavera Hills II, LLC signs this Toxic Waste Statement in its capacity as a co-applicant for the Master Plan Amendment, with the understanding that Calavera is not, and has never been, the fee owner of the Property that is the subject of this Agreement. CALAVERA HILLS II, LLC, a California limited liability company By: Name: Title/ 504201.2 EXHIBIT "I" TOXIC WASTE STATEMENT To the best current actual knowledge of the undersigned, without duty of inquiry, the Parkland (as defined in the Parkland Agreement for the Robertson Ranch Master Plan dated October 27, 2006) has not been used for the disposal or storage of toxic wastes pursuant to Section 25300 et seq. of the Health and Safety Code, except possibly to the extent related to the prior use of the site as agricultural land. This declaration satisfies the requirements of City of Carlsbad Municipal Code section 21.38.060(5)(D). Dated:, 2006 BRIAN ROBERTSOR/CO-SUCCESSOR TRUSTEE OF THE ROBERTSON FAMILY 1995 TRUST, dated^April 19, 1995, as to an undivided one-b^lf interest GARY ROBERTSON^ CO-SUCCESSOR TRUSTEE OF THp^ROBERTSON FAMILY 1995 TRUST^dated April 19, 1995, as to an undivided one-half interest BRIAN ROBERTSON, COxSUCCESSOR TRUSTEE UNDER DE0f^ARATlON OF TRUST, dated Octobers, 1976, as to an undivided 7% intepeSt X GARY ROBERTSON, CO-SUCCESSOR TRUSTEE UN0ER DECLARATION OF TRUST, dated October 8, 1976, as to an undivideiK/% interest BRIAN ROBERTSOR^^O-SUCCESSOR TRUSTEE OF THE/ELSIE M. KELLY IRREVOCABLE JPRUST, dated June 19, 1989, as to an undivided 43% interest GARY ROBERTSON, CO-SUCCESSOR TRUSTEEXl&F THE ELSIE M. KELLY IRREVOCABLE TRUST, dated June 19, 1989, as to an undivided 43% interest Calavera Hills II, LLC signs this Toxic Waste Statement in its capacity as a co-applicant for the Master Plan Amendment, with the understanding that Calavera is not, and has never been, the fee owner of the Property that is the subject of this Agreement. CALAVERA HILLS II, LLC, a California limited liability company Name: Title: 504201.2 18 EXHIBIT "I" TOXIC WASTE STATEMENT To the best current actual knowledge of the undersigned, without duty of inquiry, the Parkland (as defined in the Parkland Agreement for the Robertson Ranch Master Plan dated October 27, 2006) has not been used for the disposal or storage of toxic wastes pursuant to Section 25300 et seq. of the Health and Safety Code, except possibly to the extent related to the prior use of the site as agricultural land. This declaration satisfies the requirements of City of Carlsbad Municipal Code section 21.38.060(5)(D). /Dated: /- BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEE OF THE ROBERTSON FAMILY 1995 TRUST, dated April 19, 1995, as to an undivided one-half interest BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEE UNDER DECLARATION OF TRUST, dated October 8, 1976, as to an undivided 7% interest GARY ROBERTSON^ CO-SUCCESSOR TRUSTEE OF TOEllOBERTSON FAMILY 1995 TRUST^xIated April 19, 1995, as to an undivided erne-half interest GARY ROBERTSON^ CO-SUCCESSOR TRUSTEE UNDER DECLARATION OF TRUST, dated^October 8, 1976, as to an undivided 7% interest BRIAN ROBERTSON, CO-SUCCESSOR TRUSTEE OF THE ELSIE M. KELLY IRREVOCABLE TRUST, dated June 19, 1989, as to an undivided 43% interest GARY ROBERTS0MT CO-SUCCESSOR TRUSTEE OF/THE ELSIE M. KELLY IRREVOCABLE TRUST, dated June 19, 1989, as to anufiaivided 43% interest Calavera Hills II, LLC signs this Toxic Waste Statement in its capacity as a co-applicant for the Master Plan Amendment, with the understanding that Calavera is not, and has never been, the fee owner of the Property that is the subject of this Agreement. CALAVERA HILLS II, LLC, a California limited liability company By: Name: Title: / 504201.3 18