HomeMy WebLinkAbout1989-05-23; City Council; Resolution 89-173..
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RESOLUTION NO. 89-173
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A PURCHASE AND SALE AGREEMENT FOR REAL PROPERTY AS THE SITE FOR THE CARLSBAD CITY LIBRARY, AND APPROVINC RECIPROCAL PARKING EASEMENTS WITH CARLSBAD RETAIL ASSOCIATES.
WHEREAS, the City of Carlsbad and Carlsbad Retail Associates have
prepared an agreement for the purchase and sale of real property on which
the city intends to construct the Carlsbad City Library from Carlsbad
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WHEREAS, the City Council of the City of Carlsbad desires to 9
Retail Associates; and
10 acquire a parcel of property on which to construct a new city library; an(
11 WHEREAS, the library master plan and the Growth Management Prograr
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Carl sbad, California as follows: 15
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 14
needs of the community. 13
of the City of Carlsbad require the construction of a library to meet the
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1. That the above recitations are true and correct.
2. That the agreement between the City of Carlsbad and Carlsbad
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1 approved. 19
Retail Associates which is attached hereto as Exhibit A is hereby
3. That the Declaration and Reservation of Access and Reciprocal 20
21 Parking Easements which is attached hereto as Exhibit B is hereby
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approved.
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4. That the Mayor of the City of Carlsbad is hereby authorized
2 and directed to sign the agreement and easements on behalf of the City.
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1989, by the following vote to wit: 5
Council of the City of Carlsbad, California on the 23rd day of JW 4
PASSED, APPROVED AND ADOPTED at a regular meeting of the City
6 AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
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NOES: None
ABSENT: None
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10 ATTEST:
I.3. 12 PVG/ ALE EN HA R. L. KUNDTZ, &&JT&RANg Deputy City City C1 Clerk erk
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e e EXHIBIT A
AGREEMENT
FOR
PURCHASE AND SALE OF REAL PROPERTY
AND
JOINT ESCROW INSTRUCTIONS
BY AND BETWEN
CARLSBAD RETAIL ASSOCIATES
AND
THE ClTY OF CARLSBAD, CALIFORNIA
a
25881): SHS
0.32189
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TABLE OF CONTENTS
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I. RECITALS ...........................................
11. TERMS AND CONDITIONS ...............................
1. Purchase and Sale ............................
2. Purchase Price ...............................
3. Payment of Purchase Price ....................
4. Conditions Precedent to Close of Escrow ......
5. Approved Master Site Improvement Costs .......
6. Escrow Instructions ..........................
7. Closing ......................................
8. Conveyance and Condition of Title ............
9. Items to be Delivered at or Prior to Closing .
10. The City's Warranties ........................
11. Seller's Warranties ..........................
12. Prorations; Costs and Expenses ...............
13. Broker's Commissions .........................
14, Imdemnification ..............................
15. Additional Assurances .........................
16. -Attorney's Fees ...............................
17. Entire Agreement ..............................
18. Notices .......................................
19. Counterparts ...................................
20. Captions ......................................
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21. Assignability .................................
22. Successors and Assigns .......................
23. Time of the Essence ...........................
24. Escrow Holder's Standard Provision ............
25. Survival of Warranties ........................
26. Reasonable Approvals ..........................
27. Section 1445 Certificate ......................
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS
This Agreement for Purchase and Sale and Jo Escrow Instructions (the "Aqreement") is made and entered il - this day of I 1989, by and betwc CARLSBAD RETAIL ASSOCIATES, a Joi,nt Venture (hereinaf. referred to as "Seller"), and THE CITY OF CARLSBAD, CALIFORN' (hereinafter referred to as the "City").
I RECITALS
A. Seller is the owner of certain real prope: located at the northwest corner of Alga Road and El Camino RI in Carlsbad, California consisting of approximately 28.57 ac: (the "Master Parcel" ) .
B. Seller is in the process of obtaining . necessary governmental approvals to record a parcel map 0' the Master Parcel that will subdivide the Master Parcel i: four parcels (sometimes hereinafter referred to as "Parcel "Parcel 2", "Parcel 3" and "Parcel 4").. The location approximate configuration (subject to governmental approval) Parcel 1, Parcel 2, Parcel 3 and Parcel 4 is illustrated in attached Exhibit "A".
C. Seller intends to construct on Parcel 3 a h quality retail shopping center containing approximately 146, square feet of retail space.
D. The City desires to purchase Parcel 2 construct a building on the site (the "Library Building") operate a public library on the site. Parcel 2 sh hereinafter be referred to as the "Property".
-E. . Seller believes that the construction operation of a public library within the Master Parcel w enhance the attractiveness and usefulness of the Master Par to the residents of Carlsbad.
F. The City believes that locating a pub library within such a high quality shopping center complex w provide the citizens of the City with a convenient and pleas environment for a library facility and will maximize accessibility of the library to the community.
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G. Seller intends to deliver the Property to t City in a prepared condition as more particularly set forth Section 5 below.
I1 TERMS AND CONDITIONS
NOW, THEREFORE, for valuable consideration, 1 sufficiency of which is hereby acknowledged, Seller and 1 City hereby agree as follows:
1. Purchase and Sale. Subject to the terms i conditions set forth herein, Seller hereby agrees to sell 1 Property to the City, and the City hereby agrees to purch: the Property from Seller.
2. Purchase Price. The purchase price for t Property (the "Purchase Price") shall be an amount equal to t sum of the following:
(a) $1,253,221.20 (the "Basic Proper
(b) The sum of amounts calculated each mor for the period September 30, 1988, to the date of Close Escrow for the sale of the Property to the City, whj calculations shall be according to the following formula:
(i) The product of the Basic Proper Cost and the interest rate actually charged to Seller (t "Actual Interest Rate") for the months being calculat for funds borrowed by Seller to purchase that portion the Master Parcel which included the Property; plus
Property for said period; plus
cost I8 ) ; plus
(ii) Property taxes assessed on t
(c) the product of (i) the Approved Mast Site Improvement Cost (as such term is defined in section below) and (ii) the result obtained by dividing the tot amount of gross square feet in Parcel 2 by the total amount gross square feet in the Master Parcel.
At the time of execution of this Agreement, t Actual Interest Rate is the Prime Rate of the Bank of Montrc plus 3/8%. Seller anticipates obtaining a new loan in the nc future under which the Actual Interest Rate may change in whj case Seller shall notify the City of such change.
shall be paid all cash at Close of Escrow. 3. Payment of Purchase Price. The Purchase Prj
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4. Conditions Precedent to Close of Escrow. T: obligation of the City to Close Escrow is subject to t satisfaction of the following special conditions:
(a) Seller shall obtain all entitlements
use for the -Master Parcel. Seller shall obtain necessa zoning and development approvals for the Master Parcel from t City and the California Coastal Commission.
(b) Seller agrees to construct certa on-site and off-site improvements (the "Master Si. Improvements") on the Master Parcel. The Master Si. Improvements are more particularly shown on and described the attached Exhibit "B". The City shall accept delivery ( the Property upon close of escrow and upon substanti' completion of the Master Site Improvements as shown on a1 described in Exhibit "B".
(c) The Master Site Improvements must 1 "substantially completed" (as such term is defined belo1 within the time schedule set forth in the completion schedu. attached hereto as Exhibit "C" (the "Preliminary Sir Completion Schedule"). Completion dates set forth in tl Preliminary Site Completion Schedule shall be extended fc labor strikes, material shortages, rain and other acts of Gc and other circumstances beyond the control of the City c Seller. In the event Seller fails to complete any of tl Master Site Improvements on a timely basis, the City m: deliver to Seller a written notice ("Notice of Failure 1 Timely Complete") requesting that Seller complete sa: improvement within sixty (60) days of the date of delivery c the Notice of Failure to Timely Complete. In the event sa: improvement is not completed by the expiration of said six1
(60) day period, the City, at its option, may terminate th: Agreement and cancel Escrow.
(d) For purposes of this Paragraph 6 tk Master Site Improvements shall be deemed "substantiall completed" at such time as the project civil-engineer ar: qualified inspectors from the City ("City Inspectors") s determine;- provided, however, in the event the projec civil-engineer determines that the Master Site Improvements ar "substantially completed" but the City Inspectors disagree Seller may, at its option, request that the issue c "substantial completion" be arbitrated by and under the rulE of the American Arbitration Association which arbitratic decision shall be binding on the parties,
5. Approved Master Site Improvement Costs.
(a) As stated in section 2(c) above, as par of the Purchase Price, the City shall pay to Seller a prorat portion of the "Approved Master Site Improvements" (as SUC
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term is defined below) said prorata portion being determil pursuant to the formula set forth in section 2(c) above,
(b) The "Approved Master Site Improveml Cost" is hereby defined as the lesser of (i) the actual cost construction of the Master Site Improvements (as defined in attached Exhibit "Bo'> or (ii) the amount of the "Ceiling Mas Site Improvement Cost" (as defined below).
The Ceiling Master Site Improvement Cl shall be determined as follows:
Seller I s general contractor shall sub] a guaranteed maximum cost for the cost of construction the Master Site Improvements (as defined in the attac: Exhibit "B") based upon final engineering designs prepa by the Seller's civil engineer in accordance with C approved plans and specifications. All pla~ specifications and contractor pricing shall be approved the City Engineer. The approved cost shall be the Ceil, Master Site Improvement Cost. Increases in COI associated with changes in plans requested by the C: shall increase the Ceiling Master Site Improvement Cc proportionately.
6. Escrow Instructions. To effectuate the te: and conditions of this Agreement, an escrow ("Escrow") shall opened with Transamerica Title Insurance Company, 3033 ! Avenue, Suite 100, San Diego, California 92103 ("Esc: Holder") within two (2) business days from the execut: hereof. Opening of escrow shall be deemed to have occur] when a fully executed copy of this Agreement has been delive: to Escrow Holder by Seller, and this Agreement shall serve escrow instructions.
7. Closing. The closing (the "Close of EscroI means the completion of the purchase, exchange of money i documents, recording of the Grant Deed and delivery possession of the Property to the City. The Close of Esc~ shall take place on or before the thirtieth (30th) ( following the acknowledgment by the City that all conditic precedent set forth in paragraph 4 above have been waived satisfied.
8. Conveyance and Condition of Title. Conveya~
of the Property by Seller to the City shall be by a standi form Grant Deed in use in the State of California, recordable form, duly .executed and acknowledged by Sellc conveying to the City good and marketable title in fee sim] to the Property, free and clear of any and all lie] encumbrances, conditions, easements, assessments, restrictic and other conditions, subject only to (i) those exceptic which are set forth in the attached Exhibit "D" (the "Agrc
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Exceptions") and, (ii) any additional exceptions approved writing by the City (such additional exceptions sometin hereinafter be collectively referred to as the "Permitt Exceptions" ) .
9. - Items to be Delivered at or Prior to Closinq.
or prior to the Close of Escrow, in a form and substar reasonably satisfactory to the City, a duly executed 2 acknowledged Grant Deed in recordable form customari acceptable in similar transactions for conveying fee title the Property.
(a> Seller shall deliver to Escrow Holder
(b) The City shall deliver to Escrow Hold not less than one (1) business day prior to the Close of Escr (i) a cashier Is check or wired funds in the amount of t Purchase Price less the amount of all reductions, adjustmer: and prorations in accordance with this Agreement.
(c) Escrow Holder shall deliver (or corn to deliver) to the City, at the Closing, a CLTA owner Is tit insurance policy (the "Insurance Policy") in the full amount the Purchase Price payable hereunder, issued by the Escr Holder, containing no exceptions other than the Agre Exceptions and the Permitted Exceptions and insuring title the Property.
10. The City's Warranties. The City has the fu legal power, authority and right to execute and deliver, and perform the City's obligations under this Agreement, and t City's performance hereunder and the transaction contemplat hereby have been duly authorized by all requisite action on t part of the City and no remaining action is required to ma this Agreement binding upon the City.
11. Seller's Representations.
(a) The City shall rely solely upon t title policy referred to above as being the City's assuran regarding -the state of title. Seller's only representatic with regard to the Property or the condition of plan specifications, drawings, or government approvals regardi improvements heretofore made or proposed hereafter to be ma to the Property are as set forth herein.
(b) Seller and the respective parti signing this Agreement on its behalf, have the full leg power, authority and right to execute and deliver, and perform their obligations under this Agreement, and Seller performance hereunder and the transactions contemplated here have been duly authorized by all requisite action on the pa
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of Seller and no remaining action is required to make tl Agreement binding upon Seller.
(c) No representation, warrantv or statemc of Seller in this Agreement-or in any document, *certificate schedule furnished or to be furnished to the City pursui hereto, or in connection with the transaction contempla: hereby, contains any untrue statement of a material fact omits any fact which is necessary to make such statements 1 misleading.
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(dl Seller is not aware in its search ( inquiry of any defects to the Property (including the existel of toxic waste or toxic substances on or beneath the surface the Property), of any pending or threatened litigation, cla or causes of action or other matters that would materially adversely affect the Property, or any facts that would form * basis of any litigation, claim or cause of action that wo1 materially or adversely affect the Property.
12. Closing Costs and Expenses. At the Closil the following items shall be allocated in the manner specifiec
(a) Taxes. Seller shall pay real prope: taxes through the Closeof Escrow; provided, however, Seller has made a tax payment for periods that extend bey( the Close of Escrow, Seller shall be reimbursed for such excl payment.
(b) Escrow Fees. Seller and the City sh each pay one-half (1/2) of the usual escrow fees, and Sel shall pay the usual recording fees. Seller shall documentary transfer taxes.
cost of a insurance.
(C) standard Title Insurance. Seller shall coverage CLTA owner's policy Pay of ti
(d) Disbursements. All costs and expen payable hereunder shall be disbursed by Escrow Holder to proper payee (.including itself) from funds deposited i Escrow I
13. Brokers' Commissions. Each party represe and warrants to the other that it has not engaged or emplo or otherwise incurred any other obligation to any agent, bro or finder with respect to this Agreement or the purchase
, sale of the Property. The City and Seller will each indemn the other against and hold it harmless from any claim for fee, commission or other compensation made by any person entity claiming to have been employed, engaged or otherw retained by the indemnifying party.
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14, Indemnification. The City and Seller shi indemnify and hold harmless the other non-breaching pa: against any loss, liability and damage, including reasonal attorneys' fees and other expenses, arising out of or connection with any breach of representation, warran. covenant or agreement contained herein, The City sh, indemnify Seller against any loss, liability and damac including reasonable attorneys' fees, arising out claims/lawsuits by future owners of all or a portion of . Property; notwithstanding the foregoing, the City shall 1 indemnify Seller from any loss, liability and damage, includ reasonable attorneys' fees, arising out of claims/lawsuits future owners of all or a portion of the Property in connect with any alleged existence of toxic waste and/or to: substances on or beneath the surface of the Property prior the close of Escrow and/or relating to actions, events occurrences occurring prior to the close of Escrow.
15. Additional Assurances, The City and Sel agree to execute such other documents as may be reasona: necessary to perform the terms of this Agreement.
16. Attorneys' Fees. In any action between City and Seller seeking interpretation or enforcement of any the terms and provisions of this Agreement or in connect with the Property, the prevailing party in such action shall awarded, in addition to any other award, .its reasonable co and expenses, including reasonable attorneys' fees.
17. Entire Aqreement. This instrument conta the entire agreement between the parties relating to transactions contemplated hereby, and all prior or contempora ous agreements, understandings, representations and statemen oral or written, are merged herein. This Agreement may only modified by an agreement in writing executed by all of parties hereto. All representations and warranties made by City and Seller and indemnifications contained in t Agreement shall survive the Close of Escrow.
18. Notices. All notices, consents or ot communications to be given hereunder shall be in writing shall be delivered in person or sent by certified or registe mail, return receipt requested, postage prepaid, as follows:
To Seller: CARLSBAD RETAIL ASSOCIATES
3151 Airway Avenue Suite L-1 Costa Mesa, California 92626 Attn: Michael Ferensowicz
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With a copy to: Steven H. Sunshine, Esq. Layman, Jones & Dye
2600 Michelson Suite 1000 Irvine, California 92715
With an Johnson Wax Development Corporati additional copy 3150 Bristol Street
to : Suite 250 Costa Mesa, California 92626 Attn: Eugene Spindler
To the City: City Manager City of Carlsbad 1250 Elm Street Carlsbad, California 92008 Attn: Frank Mannen
or such other party and or address as any of such parti hereto may designate in a written notice served upon the 0th parties in the manner provided herein. All notices, conser or other .communications to be given hereunder shall be deen duly given and received on the date of delivery, if deliver in person, or two days after the date of mailing, if sent certified or registered mail.
19. Counterparts. This Agreement may be execut in two or more counterparts, each of which shall be deemed original, but all of which together shall constitute one i the same instrument.
20. Captions.. The captions in this Agreement i inserted for convenience of reference only and in no 9 define, describe or limit the scope or intent of this Agreeme or any of the provisions hereof.
21. Assignability. The City may not assign I rights under this Agreement without the express written cons6 of Seller, which consent shall not be unreasonably withhe: Seller may not assign its rights and obligations under tf Agreement -without the expressed prior written consent of 1 City, which consent will not be unreasonably withheld.
22, Successors and Assims. This Agreement shi be binding upon and shall inure to the benefit of the part: hereto and their respective heirs, executors, administratol successors and assigns. Seller agrees that in the event Sel: desires to transfer its ownership of the Property prior to 1 Close of Escrow, Seller shall advise the intended transfe: (the "Transferee") of Seller's obligations under this Agreemc and prior to the transfer of ownership Seller shall deliver the, City a statement from the Transferee in which * Transferee agrees to perform all obligations under tl Agreement. -
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23. Time of the Essence. Time is of the essenc in this Agreement.
24. Escrow Holder's Standard Provision. Sellt and the City agree to be bound by the Standard Generi Provisions of- Escrow Holder to the extent they are nc inconsistent with the terms hereof.
25. Survival of Warranties. The representatiol
and warranties of the City and Seller contained herein are trl as of the close of Escrow and shall survive the Closing.
26. Reasonable Approvals. Except as otherwi: expressly provided herein, whenever in this Agreement eith( the City's or Seller's consent or approval is required, t: parties hereby agree that said consent or approval shall not : unreasonably withheld or delayed.
27 Section 1445 Certificate. Seller shall plal into escrow a Certification that Seller is not a foreign persl in the form attached hereto as Exhibit "E". "
SELLER :
CARLSBAD RETAIL ASSOCIATES, a Joint Venture
By: JDCR Ltd, Partnership, a Wisconsin limited partnership, joint venture partner
By: Johnson Wax Propetties, Inc., a California corporation, its sole general partner
By :
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By: The F.T. VON DER AHE COMPANY, a Sole Proprietorship, joint venture partner
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-a - Frederick T. Von der Ahe
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CITY:
THE CITY OF CARLSBAD, CALIFORNIA, a
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TRANSAMERICA TITLE INSURANCE COMPANY
825 North Broadway Santa Ana, California 92701
We -are in receipt of that certain Agreement Purchase and Sale of Real Property and Joint Esc Instructions by and between CARLSBAD RETAIL ASSOCIATES, a jo venture, and the CITY OF CARLSBAD, CALIFORNIA. Transamer Title Insurance Company, as Escrow Holder, assigns Esc
No. to this transaction.
TRANSAMERICA TITLE INSURANCE COMPANY
Dated: February -, 1989 By : , Escrow Offi
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EXHIBIT "B"
PLAZA PASEO REAL
MASTER SITE 1"ENTS SCOPE OF WORK
April 14, 1989
A. GRADING AND DEMOLITION
1. Gradins and Earthwork
a. Clearing, grubbing b. Grade ungraded portion of site and remedial gradir previously graded areas including:
0 90% relative compaction, certified
0 removal and recompaction of topsoil average 2.~
0 trenching of all gullies, removal and recompact
0 removal and recompaction of loose fills
0 keying and benching of fill slopes
c. Subdrains d. Brow ditches e. Permanent slope planting and irrigation on perimet slopes f. Temporary erosion control during/after rough gradj
0 desiltation basins
0 sandbags
0 hydroseeding and irrigation
g. Maintenance of all weather access h. Crib walls (price rear slope crib wall as separatc i. Retaining walls
2. Demolition and Removal of Existins Structures and Facil
a. Removal of a.c. pavement, concrete curb and gutte~
b. Removal of 811 water and sewer mains and associate
c. Removal of fire hydrants d. Demolition of retaining walls e. Demolition of brow ditches
f. Demolition of desiltation basin spillways g. Demolition of 3 storm drain inlet headwalls h. Removal of 30" r.c.p.
appurtenance
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Plaza Paseo Real Master Site Improvements (Cont'd.) Page 2
i. Demolition of tops of deep cleanouts - bottoms to 1
j. Demolition of storm drain inlets and portions of p:
k. Removal of all gas, electric, telephone, CATV faci!
1. Demolition of curb and gutter along northerly side
m. Utilities relocation, if necessary
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at two Alga entrances
Alga Road
B. OFFSITE IMPROVEMENTS
1. El Camino Real
a. b.
d. e.
f.
g. h. i.
k.
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Median relocation/removal Restriping, signing, pavement markers Transition north of property Remove exist a.c. berm and driveway opening Pavement widening and construction of curb, gutter sidewalk Upgrade Dove/E.C.R. traffic signalization and intersection per L.F.M.P. Street lights Street trees Guardrail Handicap ramps Utilities relocation, if needed
2. Alaa Road
a. b.
d. e.
f.
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C.
Median construction Restriping, signing, pavement markers Transition at west boundary Pavement widening Construct curb, gutter and sidewalk Street trees Street lights Traffic signal at main entrance at Manzanita Handicap ramps Utilities relocation, if needed
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Plaza Paseo Real Master Site Improvements (Contld.)
Page 3
3. Dove Lane
a.
b.
d. e. f.
g* h. i.
k. 1.
C.
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A.C. pavement per City standard
Curb and gutter Sidewalks Street trees Street lights
Monuments Barricades at end of improvements Striping and pavement markings Guardrail Traffic signal at north entrance A.C. berm or redwood header for 1/2 st. pavement e Utilities coordination
C MASTER ON-SITE IMPROVEMENTS
1. Portion Of LOOD Street (between Alaa/Manzanita Ent- an Lane Entry)
a. A.C. pavement per City standard b. Curb, gutter and sidewalks (as per plan) c. Landscaped parkway strip planters and median islan
d . Lighting e. Enhanced paving at pedestrian crossings and entrie
f. Striping and pavement markings g. Directional signage
with irrigation
2. Storm Drainaae Inmovements
a. b.
d. e. f.
g. h. i.
C.
F type catch basins - west slope Various sizes r.c.p. culvert per plan (main lines Curb inlets (loop street only) Cleanouts Headwalls Temporary culvert - rough grading Deep connection at 38'+ deep cleanout at south ent Offsite siltation (Levatino) Detention basin including:
0 outlet structure
0 spillway
0 headwalls, catch basins
0 fence around perimeter
0 rip-rap at 36I1/42l1 inlet north side of Dove . 0 landscaping
j. Offsite detention basin cleanout above lagoon
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Plaza Paseo Real
Master Site Improvements. (Cont'd.) Page 4
3. Sewer Improvements
a. Mains (backbone system only)
b. Manholes (backbone system only)
C. Connection to existing stub at south entrance
d. Cleanouts
e. Offsite repairs to Ayres Trunk Line (pro-rata)
4. Water Improvements
a. Hot tap existing main at ECR/Dove
b. Connect to stub ECR 2001+ south of Dove c. Connect to stub south entrance de Mains (backbone system only) including:
0 valves blowof f s
0 air release valves/assemblies thrust blocks
0 fire hydrants
e. Reclaimed water lines for perimeter slopes
f. Relocate pressure reducing station/vault at Dove/E
5. Utilities
a. Electric (backbone system only)
be Gas (backbone system only) c. Cable TV (backbone system only)
d. Telephone (backbone system only)
D. SOFT COSTS
1. Engineering/Design
2. Construction Interest
3. Contingency
E. SPECIAL REIMBURSABLES (cost to be paid in total bv libraw)
1. Parking area on Parcel 2 south of future library buildi be built %p-frontg@ as part of Parcel 3 on-site contrac
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EXHIBIT "C"
PRELIMINARY SITE
IMPROVEKEWC COMPLETION SCHEDULE
April - July, 1989 Final engineering design and issua grading permit
August - October, 1989 Demolition, rough grading and eros
control completion/issuance of sit improvement permits
October 1989 - March, 1990 Installation of on-site backbone
infrastructure, perimeter landscap: and offsite improvements
March - April 1990 Inspections and punchlist/library I ready for close of escrow
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EXHIBIT "D"
AGREED EXCEPTIONS TO TITLE
1. General and special County and/or City Taxes for current fis
2. Easeraent(s) for drainage and access to maintain drainage
year.
facilities in favor of San Diego County Flood Control Distric (Zone #1)
3. Easement(s) in favor of San Diego Gas & Electric Company for
4. Easement(s) in favor of the City of Carlsbad for on-site roac
5. Easement(s) in favor of the City of Carlsbad for portions of
on-site distribution of electricity and/or natural gas.
other public utilities.
Lane.
6. Agreements by current and previous owners for the payment of public facilities fees.
7. Any performance bonds for on going erosion control and/or of: improvements.
8. A Declaration and Reservation of Access and Reciprocal Parki~ Easements.
9. Any additional easements shown on Parcel Map No. MS764A.
lo. Any other exceptions which are included prior to the close 0, escrow which have been reviewed and approved by the City Attc
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TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform the City of Carlsbad (the "Transferee") that withholding of tax under Section 1445 of the Intern; Revenue Code of 1954, as amended ("Code") will not be require of the Transferee upon the transfer of certain real property t
CARLSBAD RETAIL ASSOCIATES (the "Transferor"), the undersign€ hereby certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporatior foreign partnership, foreign trust or foreign estate (as tho: terms are defined in the Code and the Income Tax Regulatior promulgated thereunder);
2. The Transferor's U.S. employer identificatic number is ; and
3. The Transferor's office address is:
Carlsbad Retail Associates
3150 Bristol Street Suite 250 Costa Mesa, California 92626
The Transferor understands that this Certificatic may be disclosed to the Internal Revenue Service by tk Transferee and that any false statement contained herein cou: be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I ha1 examined this Certification and to the best of my knowledge a1 belief it is true, correct and complete, and I further declal that I have authority to sign this document on behalf of tl Transferor.
Dated: , 1989 CARLSBAD RETAIL ASSOCIATES
e By: JDCR Ltd, Partnership, a Wisconsin limited partnership, a joint venture partner
By: Johnson Wax Properties, Inc., a California corporation, its sole general partner
By : Eugene A. Spindler, its Vice President EXHIBIT "E"
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RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO:
Steven H. Sunshine, Esq. LAYMAN, JONES 6 DYE
2600 Michelson Drive
Suite 1000 Imine, California 92715
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PARCEL MAP NO. 764-A DECLARATION AND RESERVATION OF ACCESS AND RECIPROCAL PARKING EASEMENTS
This Declaration and Reservation of Access a1 Reciprocal Parking Easements for Parcel Map No. 764-A is mac by CARLSBAD RETAIL ASSOCIATES, a joint venture comprised ( JDCR Ltd. Partnership, a Wisconsin limited partnership, ai Frederick T, Von der Ahe, dba The F.T. Von der Ahe Cornpal
( "Dec 1 ar ant I' ) .
- PRgAflBLE:
A. Declarant is the sole owner of certain re' property located in the City of Carlsbad, County of San Diegc State of California, more particularly described on Exhibit 'I, attached hereto and made a part hereof (the "Property").
B. It is the desire and intention of Declarant develop all of the Property pursuant to a general plan for a of the Property and subject the Property to certain protecti, covenants, conditions, restrictions, rights, reservation easements, and equitable servitudes, all running with the la as hereinafter set forth.
C. Declarant hereby declares that all t Property shall be held, sold, conveyed, hypothecate encumbered, leased, rented, used, occupied and improved subje to the following covenants, conditions, restrictions, right reservations, easements, and equitable servitudes, all of whi are declared and agreed to be for the purpose of uniform enhancing and protecting the value, attractiveness a desirability of the Property, in furtherance of a master pl for, the protection, subdivision, maintenance, improvement, sa and leasing of the Property or any portion thereof, includi all impGovements thereon. The covenants, condition restrictions, rights, reservations, easements and equitab servitudes set forth herein shall run with the land, shall binding upon all persons having or acquiring any right, tit or interest in the Property, or any portion thereof, the heirs, successors and assigns; shall inure to the benefit and burden every portion of the Property and any intere therein; and shall inure to the benefit of, be binding up0 and may be enforced by Declarant, each Owner (as here defined) and their respective heirs, executors, administrator and successive owners and assigns.
Article I DEFINITIONS
Unless otherwise expressly provided, the followi words and phrases when used in this Declaration shall have t meanings hereinafter specified.
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1.01 Declarant. "Declarant" shall mean Carlsb Retail Associates, a joint venture comprised of JDCR Lt Partnership, a Wisconsin limited partnership, and Frederick Von der Ahe, dba The F.T. Von der Ahe Company, its successor and any Person to whom it shall have assigned any of its righ hereunder by an express written assignment.
1.02 Declaration. "Declaration" shall mean t within Declaration and Reservation of Access and Reciproc Parking Easements for Parcel Map No. 764-A, as it may amended from time to time as provided herein.
1.03 Improvements. "Improvements" shall mean a structures and appurtenances thereto of every type and kin including, but not limited to, buildings, walkways, sprinkl pipes, roads, driveways, parking areas, fences, screeni walls, block walls, retaining walls, stairs, landscapi hedges, windbreaks, plantings, planted trees and shrubs, pol and signs.
1.04 Mortgage. "Mortgage" 'shall mean any record mortgage or deed of trust or other hypothecation or conveyan of a Parcel or other portion of the Property to secure t performance of an obligation, which conveyance shall reconveyed upon the completion of such performance. The te "Deed of Trust" shall be synonymous with the term "Mortgage. 'I
1.05 Mortgaqee. "Mortgagee" shall mean a Person whom a Mortgage is made and shall include the beneficiary of Deed of Trust. The term "Beneficiary" shall be synonymous wi the term "Mortgagee. I'
1.06 Owner. "Owner" shall mean the record own^ whether one or more Persons, of a fee simple interest in Parcel, including Declarant with respect to each Parcel ow by Declarant. The term "Owner" shall include a seller under executory contract of sale but shall exclude Mortgagees.
~ -~ 1.07 Parcel. "Parcel" shall mean any of Parcels
2 or 3 of the Property as set forth on Exhibit "A" attack hereto,
1.08 Permittees. Declarant, any other Owner Person entitled to occupy on an exclusive basis any portion a building within the Property, and their respective partner officers, directors, employees, agents, patrons, guest invitees, contractors, visitors, lessees, licensees E representatives.
1.09 Person. "Person" shall mean a natur individual or any other entity with the legal right to hc title to r'eal property.
1 respect to document in Recorder.
.lo Recordation. "Recordation" shall mean, any document, the recordation or filing of the Office of the San Diego County, Calif
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1.11 Sit ~. :e Plan. "Site Plan" shall mean the s: plan for the Property attached herefa as Exhibit 'x and mad( - - part hereof.
1.12 Street. That portion of the Property which designated on the "Site Plan" (Exhibit "B") as the "LC Driveway" ,
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Article I1 EASEMENTS
2.01 Creation of Easements to Benefit Owner
Subject to all other provisions of this Declaration, Declara hereby establishes and reserves the following easements:
(a) Access. For the benefit of the Owne of Parcel 1 and Parcel 2, nonexclusive surface easements f access, ingress and egress over the Street and adjace walkways located on Parcel 3 ("Access Easement Area"). T easement may be used by each such Owner and each such Owner Permittees for walkways, vehicular access and egress, and su other purposes as are reasonably necessary for the use a enjoyment of such Owner's Parcel provided that such easemen shall only be exercisable over such portions of the Acce Easement Area whose construction or reconstruction (in t event of damage) has been completed.
(b) Maintenance and Repair of Street. T Owner of Parcel 3 shall promptly repair, restore, and clean a damaged, unsafe or unattractive portions of the sidewal walkway and Street, including, but not limited to, tho portions of the sidewalk, walkway and Street containi potholes or broken glass. The sidewalk, walkway and Street Parcel 3 shall be maintained by the owner of Parcel 3 in manner consistent with maintenance of sidewalks, walkways a streets on similar first class commercial/retail projects north San Diego County. Such Owner shall have a nonexclusi easement over Parcel 1 and Parcel 2 for access to facilita such Owner's performance of its duties or exercise of i rights with respect to its maintenance obligations set forth this Subparagraph (b) of Section 2.01, provided that (a) sc Owner's exercise of such easement shall not unreasonak obstruct or restrict access to the Parcels, (b) adequz measures are taken to ensure the safety and convenience Persons using the Parcels, (c) the Improvements on the Parcc are replaced or restored to their condition in which tk existed immediately prior to the exercise of such Ownel rights under such easements (except as duly maintained repaired), (d) such Owner's exercise of its rights under st easement does not unreasonably interfere with the use i enjoyment of the Parcels by the Owners or their Permittees, i (e) all governmental requirements applicable thereto i satisfied.
(c) Slope Area. The Owner of Parcel 2 shi have a nonexclusive easement for slope maintenance and repi over those portions of Parcel 3 improved with slopes described on the Site Plan (the "Slope Area"). i landscaping on the Slope Area shall be maintained at a ley consistent with the detailed landscape and irrigation p: approved By the City. Such level of maintenance shall consistent with slope maintenance on similar first clI commercial/retail projects in north San Diego County and shl include the frequent removal of weeds and deteriorating plai and trees. The Owner of Parcel 2 shall ensure that automatic sprinkler system installed in all Slope Areas Parcel 2 and Parcel 3 is maintained in good operating order repair with all leaks and stoppages promptly corrected. Owner of Parcel 2 shall also have a nonexclusive easement o Parcel 3 for access to facilitate such Owner's performance its duties or exercise of its rights with respect to maintenance obligations set forth in this Subparagraph (c) this Section 2.01, provided that (a) such Owner's exercise such easement shall not unreasonably obstruct or restr access to the Parcels, (b) adequate measures are taken ensure the safety and convenience of Persons using the Parce (c) the Improvements on the Parcels are replaced or restored their condition in which they existed immediately prior to exercise of such Owner's rights under such easement (except
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duly maintained or repaired) and (d) such Owner's exercise its rights under such easement does not unreasonably interfc with the use and enjoyment of the Parcels by the Owners their Permittees,
(d) Reciprocal Parking Easements 1 Parcels 2 and 3. Nonexclusive surface easements over t parking areas on Parcels 2 and 3 of the Property identified the Site Plan within Parcels 2 and 3 as "Reciprocal Park: Areas" for parking purposes provided that such park: easements shall only be exercisable over those parking arc whose construction or reconstruction (in the event of damac has been completed. If Parcel 2 of the Property is being u! as a public library, and that said Public library may from t: to time hold special events, then the following spec: restrictions shall apply:
For special events on weeknights (Monday-Thursda] the Owner of Parcel 2 may, with three (3) days prior notice the Owner of Parcel 3 or its designee, control up to a maxi1 of 350 parking stalls within Parcel 2 for the exclusive use the Permittees of the Owner of Parcel 2. Such parking contrl may be operated between the hours of 6:OO p,m. and 8:OO p and shall be terminated immediately upon the scheduled st time of the event noticed above. No special parking contr shall be allowed Friday, Saturday or Sunday.
(e) Parking Easement Benefitting Parcel The Owner of Parcel 1 shall have a nonexclusive surf easement for parking purposes over those striped parking spa located on Parcel 3 of the Property and designated on the S Plan as the "Post Off ice Parking Easement Area. I' Such park easements shall only be effective if, when and as long a! United States Post Office is being operated on Parcel 1 of Property, and only during the hours when such Post Office open for business to the public. Such parking easements sh only be exercisable over those parking areas whose construct or reconstruction (in the event of damage) has been completed
(f) Drainage. Nonexclusive surface underground easements for drainage from all Parcels in Property onto or into the drainage swales, storm drains sanitary sewers located in the Property and over the ot surface portions of the Property that are traversed by s drainage as it flows into such drainage swales, storm dra and sanitary sewers. There shall be no interference with, modification of, the established drainage pattern over portion of the Property without the prior written consent all Owners. For the purposes hereof, "established drair pattern" is defined as the drainage which exists at the time completion of the improvements as contemplated by the Site PI
(9) Damaqe of the Easement Area by Owner. Each Owner who by reason of such Owner I s or partners, officers, directors, employees, agents, contractc lessees, licensees and representatives; negligence or wil: misconduct damages any portion of, or any Improvement another Owner's Parcel shall be obligated to reimburse other Owner for the cost of repairing or replacing any I damage or Improvement.
2.02 Improvements. Except for replacement of ! Improvements as depicted on the Site Plan and subseq amendments of the Site Plan as approved by all Owners, wl approvals shall not be unreasonably withheld, no Improveml shall be constructed, installed or modified on any portio1 an Owner's Parcel in a manner that unreasonably interferes ' (i> the use and enjoyment of the easement areas on the Prop by the intended beneficiaries of the easements establishec this Declaration, or (ii) the use and enjoyment of each Pa by its Owner and such Owner I s employees, agents, tens
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guests and invitees, without the prior written consent of t other Owners. Furthermore, any Owner exercising any easemen established or reserved hereunder for the benefit of such Own shall indemnify the Owners of the other Parcels against any a all claims, losses, and expenses (including reasonab attorneys' fees) arising directly or indirectly by reason the exercise of the established or reserved easements over su other Parcels.
2.03 Failure of Responsible Party to Perfc
required under Section 2.01 above on such defaulting Owner Parcel, any other Owner (the "Objecting Owner") shall have t right, after thirty (30) days' written notice to the defaultj Owner, to enter upon the Parcel not being properly maintair and to perform required maintenance on such Parcel and to promptly reimbursed for all expenses incurred therein plus t percent (10%); provided, however, in the event the defaultj Owner commences to cure within said thirty (30) day period i diligently and continuously performs such maintenance as t defaulting Owner determines in its reasonable judgment appropriate, but the Objecting Owner believes that furtl maintenance is required, the Objecting Owner, at its optic may request that the issue of whether the maintenance perforn is satisfactory be arbitrated by and under the rules of I American Arbitration Association which arbitration decis: shall be binding on the parties.
Maintenance, If any Owner fails to perform the maintenan
2.04 Maintenance by Owner of Its Parcel, Excf for those maintenance responsibilities set forth in Sect:
2.01 above, each Owner shall maintain its Parcel in attractive condition consistent with the level and quality maintenance found in similar first class cornmercial/reti projects in north San Diego County. If any Owner fails perform the maintenance required hereunder, any other Otnn ("Objecting Owner") shall have the right, after thirty (: days' written notice, to the defaulting Owner, to enter 01 the Parcel and perform required maintenance and to reimbursed for all expenses incurred therein plus ten percl
(10%) ; provided, however, in the event defaulting m commences to cure within said thirty (30) day period diligently and continuously performs such maintenance as defaulting Owner determines in its reasonable judgment appropriate, and in the event the Objecting Owner believes t: further maintenance is required, the Objecting Owner, at option, may request that the issue of whether the maintena: performed is satisfactory be arbitrated by and under the ru of the American Arbitration Association which arbitrat decision shall be binding on the parties.
Article I11
GENERAL PROVISIONS
3.01 Riqhts of Mortqagees. Notwithstanding
other provision of this Declaration, no amendment or violat of this Declaration shall operate to defeat or render inva the rights of a Beneficiary under any Deed of Trust upon Parcel made in good faith and for value, provided that af the foreclosure of any such Deed of Trust such Parcel sh remain subject to this Declaration, as the same may be amen from time to time.
3.02 Amendment. No amendments to this Declarat shall be permitted without the prior written consent of Owner or Owners whose Parcels are affected by such amendment.
3.03 Easements Appurtenant. All easements reser
herein shall be appurtenant to and binding upon, and shall 1 with title to, the Parcel for the benefit of which 5 easements were reserved.
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any remaining provisions of this Declaration. All of su
remaining provisions shall remain in full force and effect.
This Declaration is dated , 1989, f identification purposes only.
CARLSBAD WTAIL ASSOCIATES, a joint venture
By: JDCR Ltd. Partnership, a Wisconsin limited partnership, joint venture partner
By: Johnson Wax Properties, Inc., a California corporation, general partner
By : Eugene A. Spindler, Vice President
By : Frederick T. Von der Ahe, dbz The F.T. Von der Ahe Company, joint venture partner
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STATE OF CALIFORNIA )
) ss: COUNTY OF i
On , 1989, before me, the undersigne a Notary Public in and for said State, personally appear EUGENE A. SPINDLER, personally known to me or proved to me the basis of satisfactory evidence to be the person th executed the within instrument as Vice President of Johnson W Properties, Inc., a California corporation, the corporati that executed the within instrument as the general partner JDCR Ltd. Partnership, a Wisconsin limited partnership, t partnership that executed the within instrument as a joi venture partner of Carlsbad Retail Associates, a joint ventur and acknowledged to me that such corporation executed the sa as such partner pursuant to its bylaws or a resolution of i board of directors and that such partnership executed the sa both for itself and as a joint venture partner of said joi venture and that such joint venture executed the same.
WITNESS my hand and official 'seal.
[Seal 1
Notary Public in and for said Sta
STATE OF CALIFORNIA 1
COUNTY OF ) 1 ss:
On , 1989, before me, the undersign€ a Notary Public in and for said State, personally appear Frederick T. Von der Ahe, personally known to me or proved me on the, basis of satisfactory evidence to be the person tk executed the within instrument as a joint venture partner Carlsbad Retail Associates, a joint venture, and acknowled5 to me that he executed the same both individually and as joint venture partner of such joint venture and that such joi venture executed the same.
WITNESS my hand and official seal.
Notary Public in and for said St'
[Seal I
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SUBORDINATION
The undersigned, as Beneficiary of the benef ici interest in and under that certain Deed of Tru dated I 19 I and record on 1 19 , as Instrument No. in Official Records of the San Diego Country Recorder (t "Deed of Trust"), which Deed of Trust is by a Between I Trustor, ,a corporatio as Beneficiary, hereby expressly subordinates said Deed Trust and its beneficial interest thereunder to the foregoi Declaration and Reservation of Access and Reciprocal Parki Easements,
Dated: I 19 -
a corporation
By :
Its:
By :
Its:
STATE OF CALIFORNIA 1
COUNTY OF ; ss'
On I 19 , before me, t undersigned, a Notary Public in and for said State, persona: appeared and personally known to me or proved to me on the basis satisfactory evidence to be the persons who executed the wit1 instrument as and respectively, or on behalf the corporation therein named and acknowledged to me that SI corporation executed the within instrument pursuant to : bylaws or a resolution of its board of directors.
WITNESS my hand and official seal.
Notary Public in and for said St
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