1997-622197 RECORDING REQUESTED BY ~ERS TITLE
1 ~ 0 0 i SAN DIEGO COUNTY RE~ODER'~ OFFICE
When Recorded Mail To: ~~ G~B[IRY J. SMITH, CO~TY REC~OER
CITY CLERK . FEE~: 2!.00
CITY OF ENCINITAS
505 SO VULCAN AV
ENCINITAS, CA.
PARTIAL RECONVEYANCE
Valle de Oro Bank, N.A., as Trustee under Deed of Trust dated October 29, 1997_made and executed by Barry_ O'Brien.
Inc.. a California Corooration Trustor(s) and recorded as Instrument No. 1997-0574063 on November 14. 1997, of the
Official Records in the Office of the County Recorder of the County of San Diego, State of California, having received
from Beneficiary thereunder, a written request to reconvey, in accordance with the terms of said Deed of Trust, all estate
now held by said Trustee under said Deed of Trust in and to the hereinafter described property.
NOW, THEREFORE, in accordance with said request and the provision of said Deed of Trust, the undersigned Trustee
does hereby RECONVEY, without warranty, to THE PERSON OR PERSON LEGALLY ENTITLED THERETO, all
estate now held by it thereunder in and to that property commonly known as:
310 Encinitas Blvd.. Encinitas. CA 92024 situated in the County of San Diego, State of California, described as follows:
PARCEL 1:
All that portion of Parcel 1 of Parcel Map No. 3037, within the City of Encinitas, County of San Diego, State of California,
recorded in the Office of the San Diego County Recorder on September 12, 1974 more fully described as Exhibit "A"
attached hereto and made a part hereof.
Valle de Oro Bank, N.A.
December 8, 1997 B .~0~ ~
Senior Vice Presiirent
Barry W. O'Brien, Inc.
1801
Exhibit "A"
PARCEL 1:
All that portion of Parcel 1 of Parcel Map No. 3037, within the City of Encinitas, County of San Diego, State of California,
recorded in the Office of the San Diego County Recorder on September 12, 1974, described as follows:
BEGINNING at the Northwest comer of said Parcel 1, thence Easterly along the Northerly parcel line of said parcel North
87° 18'06" East, a distance of 25.00
feet (North 87° 19'31" East per Parcel Map No. 3037); thence departing said parcel line South 31 °23' 16" East, 17.25 feet;
thence Southeasterly along a curve concave to the Southwest having a radius of 430.00 feet, through a central angle of
16°42'27'', a distance of 125.39 feet to a point of a reverse curve; thence Southeasterly along a curve concave to the
Northeast having a radius of 32.00 feet, through a central angle of 69°31'19'', a distance of 38.83 feet; thence South
84012'08" East, 47.19 feet; thence Southeasterly along a curve concave to the Southwest having a radius of 875.00 feet,
through a central angle of 7°45'51", a distance of 118.57 feet to the Easterly parcel line of said Parcel 1; thence Southerly
along said East parcel line, South 09°49'49'' East, 2.86 feet (South 09o48'57'' East); thence South 68°40'01" East, 12.12
feet (South 68°37'12'' East, 12.00 feet); thence South 21o46'26'' West, 20.01 feet (South 21022'48'' West, 20.00 feet) to
a point on the Northerly fight-of-way line of Encinitas Boulevard; said right-of-way line being the Southerly line of Parcel
1; thence along said right-of-way Northwesterly along a non-tangent curve concave to the Southwest a radial to which
bears North 14°15'16'' East (North 14°16'13'' East) having a radius of 851.00 feet, through a central angle of 8°27'24"
(8°28'21"), a distance of 125.61 feet (125.84 feet); thence along said right-of-way line North 84012'08'' West, 127.21 feet
(North 84°12'08'' West, 127.00 fqet); thence Northwesterly along a curve concave to the Northeast having a radius of 20.00
feet, through a central angle of 80008'50'' (80°08'50"), a distance of 27.98 feet to a point on the
Easterly fight-of-way line of Saxony Road, as defined by Road Survey 700-1, approved on April 19, 1971 by the County
of San Diego; thence along said Easterly right-of-way line North 04°03'18" West (North 04°03'18" West), a distance of
164.61 feet to the point of beginning.
Parcel 12:
An ~a~rmnt for th~ pu.q:x:s~(s) and upon ard subject to the terms and
provisions ccll*~tned in ir~l ,on~nt recorded ~ 9, 1997 as File NO.
1997-0622198 of Official ~m~ds upon, over and ~rw~ss all that portion of
P~ 1 of ~a~oal Map No. 3037, within the City of Er~J_n_itas, County of San
Dioc3o, State of C~l~forruia, recorded in the Office of th~ County Recorder of
San Diec3o County, September 12, 1974, described as follows:
C~m~r~.ir~j at the Northwest corner of said Patrol 1, ther~ wm~terly alon~
th~ Northo_rly p~ro~l ~ of said parcel Nc~-th 87°18'06" East, a distance of
25.00 feet (~th 87°19'31'' East per I>arcel Map No. 3037) to the True Point
of Bec3irzLirt3; thert:~ cr~tinuin~ alca~j said parcel line North 87018'06''
a distance of 16.50 feet (North 87°19'31" East) thence departin~ said parcel
line South 21°31'59" Esst, 24.00 feet; ~ South 68°28'01" ~-~t, 4.00
feet; th~nc~ South 21031'59`' East, 23.00 feet; t_he_nce South 68°28'01'` ~est,
4.02 feet; ~ Nort_hweste~ly alon~ a ncal-tanfjent curv~ concave to the
Southwest, through a oent~'al angle 16°42'27", a distance of 35.65 feet;
~ North 31°23'16" West, 17.25 feet to the-True Point of Be~in~.
DEb'-05-9? FRI 01:16 Pil NORTFI_OOUNTY E$OROI,,I F,qX NO, '7604360593 P. 07
1802
I~RT O~ WAY C~-RTn~CATXON
BASI~D ON RI~CORD DATA AS SHOW~ O~1' EXH~Brr "A' THE AREA FOR.
PARCEL 1 I$ I~REBY CERTIi:IED TO BE 14,$:~ SQUARE YEET.
ALAN D ARCHIBALD
RCE 21869
DE13-05-97' FRI 01:17 PI'I NORTi~iiOUNTY ESOROW FA)< NO. 7604360593 P, 11
1803
]:A~'VI~NT ~r~'i-~C&TiON
BASED ON PI/COP. D DATA AS SHOWN ON EXI-I~Brf "A" THE ARF:A FOR
PARCEL 12 IS IESREBY C~RT~IED TO BE 463 SQUARE FEET.
ALAN D. ARCI-]IBALD
RC~- 215~9
State of ~___~s/~/~.~_z.~. ~. 8 0 z~ .,.,t ~U.~m,UT ,O.,~..,,
County o~
person,lly appeared ~ t ~-~
~ personally known to me-OR-D ~'
evidence to be the
person(s)'' whose name(s) OA~OnN~ IN FACT
--~S/~ subscribed to the O~US~E~S~
within instrument 8nd OGO~Rom~NICONSERWTOR
acknowledged to me that
he/~ executed the
same m his~r/~r
authorized capacity(ies), SIGNER IS REPRESENTING:
~'"~Z"2':':':";f'~'"':':~ and that by his/~/t~
~ignature(s) on the
~5~ COMM, · ~0.oo~ ~ instrument the person(s),
~(~iNOTARY PUBLIC · CALIFORNIA o
~t~ S~N D~eO COU~ m or the entity upon behalf
~ ~MyComm. Explre, May28,199~ of which the person(s)
..... ,'-'-'-'-,'~-,'-,'.,'-',-'.,'.'.'.'.'.'~',.',,.'¢,~,-,,,'.'-',.'~ acted, executed the
instrument. RIGHT ~UMB~INT
Witness my hand and official seal.
A~ENTION NOTARY
The information requested below and in the column to the right is OPTIONAL.
Recording of this document is not required by law and is als~ optional.
It could, however, prevent fraudulent attachment of this certificate to any
MUST BE A~ACHED -- y~ ~ / ~GUARDIAN/CONSERVATOR
Signer{s) ~her ~an Named Abo~ .~
RECORDING RECUESTED BY LAWYERS TITLE
D~c 09
RECORDING REQUESTED BY
AND WHEN RECO~ED MAIL TO:
G~G~ 3. ~ITH, ~TV RECTOR
F~B: 0.00
TEE C~Y OB BNC~ITAS
505 So. Vu~c~ Ave.
Exempt from Recording Fee Exempt from Documentary Transfer Tax
Pursuant to Government Code Section 6103 Pursuant to R&T Code ~ 11922
~o ~ ~ (Space above this ilne for Recorder's use)
GRANT DEED
San Diego County
Assessor's Parcel Number: 258-111-23 [ ] All
IX] Portion
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BARRY O'BRIEN, LINDA O'BRIEN, and BARRY O'BRIEN, INC., a California corporation
HEREBY GRANT TO
THE CITY OF ENCINITAS, A MUNICIPAL CORPORATION
OF THE STATE OF CALIFORNIA,
all rights, interests, or title to the r~al property located in the City of Encinitas, County of San Diego, State
of California described in Extfibits A attached hereto and incorporated herein by this reference.
I~,~WITNE~S WHEREOF, the grantor hereto has caused this Grant Deed to be executed as
of this .~' day of ~t)y~*~.~ , 1997.
LINDA O'BI~N
~ BARRY~O'BRIEN, INC., a C ali,~nia, corporation
By:' iTS:~ ~/t (~ ~(~,~'
This is to certify that the interest in real property conveyed by this Grant Deed, from BARRY
O'BRIEN, LINDA O'BRIEN, and BARRY O'BRIEN, INC. to the City of Encinitas, is hereby
accepted by the undersigned on behalf of the City of Encinitas pursuant to authority conferred by
Resolution of the City of Encinita5 and the grantee consents to recordation thereof by its duly
authorized officer.
The City of Encinitas, a municipal
corporation
Dated:
~HIBIT
' PARCEL 1:
~ ~at po~on ofP~ccl 1 of P~c~l M~ No. 3037, ~t~m ~c Ci~ of~c~s, Co~
of S~ ~ego, State of C~o~a, recorded ~ ~e o~ce of ~e Sm ~o Co~
~ecord~r on S~t~ber 12, 1974, desc~ as fo~ows:
Bc~u~u~ ~t ~c no~wc~ comer of ~d P~cel 1, ~ce ea~erly ~ong ~e no~ezly
p~cel ~e of ~d p~cel No~ 87o 18'06" Ea~, a ~ce of 25,00 feet ~o~ 87~ 19'31"
Ea~ p~ P~cel Map No. 3037); ~ce d~mg s~d p~eel ~e Sou~ 31~23'16''
17.25 fe~; ~ee sou~ea~ly ~on$ a e~e concave to ~e sou~we~ ha~g a ra~us of
430.00 fe~, ~ou~ a c~ ~e of 16042'27", a ~gmce of 125.39 ~ to a po~t of a
reverse ~e; ~ce sou~ea~ly ~ong a ~e conc~e to ~e no~ea~ h~g a ra~us
of 32.00 feet, ~ou~ a c~ ~e of 69°31'19'', a ~ce of 38.83 fe~; ~ence Sou~
84~12'08' Ea~, 47.19 fe~; ~ce ~u~ea~ly ~ong a c~e concave to ~e sou~weg
ha~g a ra~s of ~75.00 fe~: ~ou~ a c~tr~ ~e of 7°45'51'', a ~ce of 118.57
fe~ to ~e easily p~cel ~e of s~d P~cel 1; ~ce sou~erly ~ong s~d ea~ p~cel ~e,
Sou~ 09o49'49" Ea~, 2.86 feet (So~ 09~48'57'' Ea~); ~ce Sou~ 68°40'01" Ea~,
12.12 feet (Sou~ 68~37'12' E~, 12.00 fe~); ~ce Sou~ 21~46'26' We~, 20.01
(Sou~ 21022'48'' We~, 20.00 feet) to a po~t on ~e no~erly fi~t-of-way ~e
~tas Bombard; ~d ~t-of-way ~e b~g ~e Sou~erly ~e of P~cel 1; ~ee
~ong s~d fi~t-of-way no~we~ly ~g a non-t~g~t ~e concave m
Sou~we~ a ra~ to w~ch be~s No~ 14~.15'16' Ea~ (No~ 14°16'13" Ea~) ha~ a
ra~us of 851.00 fe~, ~ou~ a cen~ ~e of 8~27'24TM (8°28'21")~ a ~mce of
125.61 fe~ (125.84 feet); ~ce along ~id fi~t-of-way ~e No~ 84°12'08'' Weg,
127.21 fe~ ~o~ 84~12'0g'' We~ 127.00 fe~ ); ~ce no~we~erly ~ong a ~e
concave to ~e No~ea~ ha~g a ra~us of 20.00 feet, ~ou~ a c~tr~ m~e of
" 80008'50" (g0°0g'50"), a ~ce of 27.98 feet to a po~t on ~e eagerly
~e of Saxony Road, as de,ed by ~ad S~ey 700-1~ appr~ed on Ap~ 19, 1971 by
~e Co~ of S~ Diego; ~ce ~ong said easily fi~t-of-w~ ~e No~ 04~03'1g''
We~ ( No~ 04~03' 18" We~ ), a ~mee of 164.61 fe~ to ~e po~t
ML5651 ..
RIG~tT OF WAY CERTIFICATION
BASED ON RECORD DATA AS SHOWN ON EXHIBIT "A" ~ AREA FOR
PARCEL 1 IS H~REBY CERTIFIED TO BE 14,838 SQUARE FEET.
ALAN D. ARCHIBALD
RCE 21869
STATE OF CALIFORNIA,
COUNTY OF SAN DTEGO } S.S.
On December 5, 1997
__, before me ...... $~a. rnn M~ _~]~d_B~aD _
_, a Notary Public in and for said Count~ -a~n~ ~lat;,-~; ~i~
appeared BARRY W. O'BRIEN AND LINDA O'BRIEN
s of salis~actory evidence) lo be FOR NOTARy SEAL OR STAMP
the person(s) whose name(s) is/are subscribed lo
the within instrument and acknowledged 1o me thai
he/she/they executed the same in his/her/their
auth°rized capacily,ie9), and lha, by his/her/their ~- ~~- ~
signature(s) on the instrument the person(s), or
lhe entity upon behalf of which the person(s)
acted, executed the instrument. ~ ~,~,~ ~
STATE OF CALIFORNIA,
COUNTY OF } S.S.
On
, before me,
-_, a Nolary Pul~lic}j ;n-d'-f;r-s;i~ Cou-~/ ~d--~tat;,-p;rsonally
appeared
personally known lo me (or proved to me on
the basis of satisfactory evidence) lo be for NOTARY S~ALOR STAMP
the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me lhat
he/she/they executed the same in his/her/their
authorized capacity(les), and Ihat by his/her/their
signature(s) on the instrumenl the person(s), or
the entify upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
TE lg0 Legal (2-§4)
This form is furnished by Chlcngo Title Company
Assessor's Parcel No. 258-111-23
310 Encinitas Blvd.
ACQUISITION OF REAL PROPERTY
AGREEMENT
THIS ACQUISITION OF REAL ~ROPERTY AGREEMENT ("Agreement") is entered
into on this /~ day of ~tn~3~' , 1997, by and between the CITY OF
ENCINITAS, A MUNICIPAL CORPORATION ("City"), and HARRY O'BRIEN, LINDA
O'BRIEN and BARRY W. O'BRIEN, INC. (collectively "Grantor"),
(collectively "Parties") for acquisition by City of certain real
property interests for its current Encinitas Blvd. Widening Project and
future Encinitas Blvd. and Saxony Road widening and re-alignment
projects and any and all related utility projects located within the
acquired rights-of-way (collectively "Project").
WHEREAS, City desires to acquire all of G~antor's right, interest,
and title in and to portions of Grantor's real property;
WHEREAS, Grantor desires to sell to City said real property
interests;
WHEREAS, Pursuant to a Release and Settlement Agreement dated July 2,
1997, by and between Mobil Oil Corporation ("Mobil") and Grantor ("Mobil
Agreement"), title to the real property will pass through an escrow
which was opened on October 6, 1997;
WHEREAS, this Agreement is subject to and contingent upon 1)
disclaimer by Mobil of all right title and interest in and to the real
property, and 2) title to the real property passing to Grantor; and
WHEREAS, A Grant Deed covering portions of Grantor's real property to
be acquired by the City (hereinafter referred to as Property) shall be
executed and delivered to City's authorized agent, and a copy of said
Grant Deed with corresponding legal descriptions and plat map is
attached to this Agreement as Exhibit 1;
NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES
HERETO AS FOLLOWS:
1. AGREEMENT TO SELL AND PURCHASE
Grantor agrees to sell to City, and City agrees to purchase from
Grantor, upon the terms and for the consideration set forth in this
Agreement, fee simple marketable title in and to the Property more
particularly described in Exhibits A to the Grant Deed which is attached
hereto as Exhibit 1, and incorporated herein by this reference.
2. PURCHASE PRICE
The total purchase price, payable in cash through escrow shall be
the sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00). Grantor
hereby acknowledges that the purchase price is a total settlement which
includes any and all claims Grantor may be entitled to by reason of the
acquisition by City for the Project and construction of the Project,
including, but not limited to, value of real property rights, seyerance
damages, value of improvements pertaining to the Property, if any,
compensation for all business losses including loss or damage to
goodwill, if any, and all costs and fees, including attorney's fees,
incurred in connection with the acquisition of the Property and any
improvements pertaining to the Property.
Grantor hereby waives and releases City and its officers,
employees, agents, and representatives from and against any and all
claims, actions, demands and suits relating to the purchase price and
the Project. This release extends to all such claims which now exist or
which may arise in the future, whether or not such claims are known to
Grantor, and Grantor hereby expressly waives its rights under California
Civil Code Section 1542 which provides as follows:
~A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.~
Payment under this Agreement shall be made after City obtains a
standard CLTA policy of title insurance showing fee simple marketable
title as identified in Paragraph 4 below.
City agrees to promptly execute and comply with the Assignment of
Condemnation Proceeds which is attached hereto as Exhibit 2.
3. PROJECT
Project is defined as City's current Encinitas Blvd. Widening
Project (Project No. CMS 96D) as well as any and all future Encinitas
Blvd. and Saxony Road widening and re-alignment projects and any and all
related utility projects located within rights-of-way acquired pursuant
to this Agreement.
Project No. CMS 96D is to be constructed in the manner proposed
in, or substantially similar to, the plans identified as City of
Encinitas Drawing No. 0011-SI consisting of 18 sheets.
Grantor hereby acknowledges that presently no construction plans
exist for the future projects, that City retains sole discretion in the
planning and construction thereof, and that all terms of this Agreement
extend to said future projects.
4. ESCROW AND TITLE INSURANCE
City agrees to open an escrow in accordance with this Agreement at
North County Escrow, located at 914 N. Highway 101 in Leucadia,
California 92024. City agrees to pay all usual fees, charges and costs
which arise in the escrow.
When Escrow Holder holds for City the Grant Deed in favor of City
executed and acknowledged by Grantor covering the Property, Escrow
Holder shall cause to be issued and delivered to City, as of the Closing
Date, a CLTA standard coverage policy of title insurance or, upon City's
request therefor, an ALTA standard or extended coverage policy of title
insurance (~Title Policy'), with liability in the amount of the purchase
price, covering the Property and showing title vested in City free of
encumbrances, except:
2
(a) Ail nondelinquent general and special real property
taxes and assessments for the current fiscal year;
(b) The standard printed exceptions and exclusions
contained in the CLTA or ALTA form policy;
(c) Any exceptions created or consented to by City,
including without limitation, any exceptions arising by reason of City's
possession of or entry on the Property.
City agrees to pay the premium charged therefore.
5. INDEMNIFICATION FOR UNRECORDED INTERESTS
Upon title vesting in City, Grantor warrants that there are no
unrecorded encumbrances (including but not limited to liens, leases,
easements, or licenses) on all or any portion of the Property, and
Grantor agrees to hold the City harmless, defend, and reimburse the City
for any and all of City's losses and expenses, including reasonable
attorney fees, occasioned by reason of any such encumbrance of said
Property.
6. ACQUISITION BY STIPULATED JUDGMENT IN LIEU OF DEED
In the event Grantor is unable to deliver title in a reasonable
time in accordance with the terms of this Agreement, the City may pursue
its action in eminent domain for acquisition of the Property. Grantor
agrees to waive all claims and defenses to such action and agrees that
this Agreement shall constitute a stipulation which may be filed in the
San Diego Superior Court, North County Branch, in Case No. N-75450-1, as
final and conclusive evidence of just compensation for the acquisition,
as amended by this Agreement, including all of the items provided in
Chapter 9, Title 7 of the Code of Civil Procedure commencing with
Section 1263.010.
7. CONSENT TO DISMISSAL OF CONDEMNATION
Grantor hereby agrees and consents to dismissal of said eminent
domain action and waives any and all claim to money that has been
deposited with the State Treasurer in connection with Case No. N-75450-
1.
8. CONVEYANCE OF INTEREST
Grantor agrees to convey by Grant Deed to City title in and to
said Property as described in Section 1 of this Agreement.
9. HAZARDOUS MATERIALS
Should hazardous materials be found to exist on the Property, the
City reserves all rights, if any, to bring an action to recover clean-up
costs from Grantor or any others who are ultimately determined to have
responsibility for said hazardous materials condition of the Property.
Grantor has acquired indemnification agreements for environmental
contamination and clean-up from its predecessor-in-interest Mobil under
the Mobil Agreement and when executed, the Environmental Indemnification
3
and Remediation Agreement between Mobil, Grantor's lendor, the United
States Small Business Administration, and Grantor. Grantor has assured
City that City is covered by said indemnifications as a successor-in-
interest of Grantor. City agrees to demand indemnification from Mobil
before Grantor.
10. POSSESSION OF AND PERMISSION TO ENTER PROPERTY
It is agreed and confirmed by the Parties hereto that
notwithstanding other provisions in this Agreement, the right of
possession and use of the Property by the City, including the right to
remove and dispose of improvements, commenced on August 31, 1997,
pursuant to a Court Order, and that the amount shown in Section 2 herein
includes, but is not limited to, full payment for such possession and
use, including damages, if any, from said date.
Grantor hereby grants to City, a right of entry over those
portions of Grantor's remaining real property reasonably necessary to
re-grade existing driveways, reconstruct improvements disrupted during
construction, reconnect irrigation systems, regrade slopes, construct
sidewalk and curb improvements, and for all other purposes necessary or
convenient for the construction of the Project in the manner proposed.
City will not, however, use any portion of Grantor's remaining
property for construction staging or storage areas.
City agrees to indemnify, save, and hold harmless Grantor from and
against all claims, demands, costs and expenses, including attorneys'
fees, arising out of or relating to such entry and construction by City
or its Agents.
11. MOBIL'S RIGHT TO ENTER PROPERTY
The Parties hereby acknowledge Mobil's right to enter the entire
property pursuant to an Access Agreement, a copy of which is attached
hereto as Exhibit 3.
12. ACCESS TO PROPERTY
a. City will continue to allow two driveway access points from
Encinitas Blvd. east of the future Saxony Road Re-alignment and one
driveway access point on Saxony Road. These three driveways and access
points will remain in substantially the same size at the discretion of
Grantor so long as the service station use continues. Upon change in
use, number of driveways and access points shall be at the discretion of
City.
b. City agrees to maintain reasonable access to Grantor's
remaining property at all times during construction of its Project. If
necessary, reasonable access during construction may be limited to one
driveway.
The parties agree to recordation in the office of the County
Recorder of San Diego County, California, a memorandum of the access
agreement contained in this Section 12 as provided in Exhibit 4 attached
hereto.
4
13. PUMP ISLANDS AND CANOPIES ENCROACHMENT
Pursuant to California Code of Civil Procedure Section 1263.610,
as improvements in lieu of additional compensation, City has reviewed
and approved 1) pump islands and canopy encroachments that will occur
after title pursuant to this Agreement passes as reflected in Exhibit 5
attached hereto and 2) future modifications for pump islands and
canopies as reflected in Exhibit 6 attached hereto.
14. ENCROACHMENT ON PUBLIC RIGHT-OF WAY
The parties acknowledge that portions of the Property acquired
pursuant to the Agreement are for future road improvement projects.
City agrees to allow Grantor to encroach on portions of the public right
of way at City's sole discretion. Grantor shall execute an Encroachment
Maintenance and Removal Covenant, Encroachment Permit in the form
attached hereto as Exhibit 7. Said encroachment shall be terminable at
the will of City upon thirty (30) days written notice except upon
written declaration by City of urgent need, three (3) days written
notice.
The amount shown in Section 2 herein includes, but is not limited
to, full payment for loss of any such encroachment, and destruction and
removal of any improvements contained in the public right of way.
Notwithstanding the foregoing, City will be responsible for all related
costs if it is necessary to remove, relocate and/or replace underground
storage tanks due to the Project.
Grantor agrees to indemnify, save, defend, and hold harmless City
from and against all claims, demands, costs and expenses, including
attorneys' fees, arising out of or relating to such encroachment and
shall maintain insurance in the amount of $1,000,000 for each occurrence
and aggregate for combined bodily injury and property damage naming City
as certificate holder and additional insured.
15. SOLE EXCEPTED CLAIMS
The sole exceptions to the releases recited herein are for future
claims based on this Agreement, or the breach thereof, which subject to
Section 16 below, the parties may pursue and defend according to law.
16. MEDIATION OF DISPUTES
If a dispute arises out of this Agreement, or the breach thereof,
and if the dispute cannot be settled through negotiation, the parties
agree first to try in good faith to settle the dispute by mediation,
before a mediator to be agreed upon by the parties, before resorting to
legal action. The parties agpee to share equally the cost and fees for
mediation.
17. ATTORNEYS' FEES
In the event any legal action is brought to enforce the terms of
this Agreement or to recover damages for its breach, the prevailing
party shall be entitled to reasonable attorneys' fees therein as well as
attorney's fees incurred in enforcing any judgment pertaining thereto.
5
18. EMINENT DOMAIN
It is mutually agreed that this Agreement is executed under the
imminence of condemnation as that term is used in the United States
Internal Revenue Code.
19. NOTICES
Any notices or documents to be mailed or delivered shall be
addressed to or delivered as follows:
Grantor: 1) Barry O'Brien
310 Encinitas Blvd.
Encinitas, CA 92024; and
City: City of Encinitas
505 South Vulcan Ave.
Encinitas, California 92024
Attn: Director Engineering Services
20. BINDING ON HEIRS AND ASSIGNS
The terms, conditions, covenants and agreements set forth herein
shall apply to and bind the heirs, executors, administrators, successors
and assigns of the Parties hereto.
21. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties,
and neither party relies upon any warranty, promise, representation, or
agreement not contained in writing herein.
22. TIME OF THE ESSENCE
Time is of the essence of this Agreement and each party shall
promptly execute all documents necessary to effectuate the intent herein
and shall perform in strict accordance with each of the hereinabove
provisions.
23. COUNTERPARTS
This Agreement may be executed in counterparts, each of which so
executed shall, irrespective of the date of its execution and delivery,
be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first
written above.
GRANTOR~ ~ ~ CITY:
CITY OF ENCINITAS,
~ ~ a~~corporation
BARRY O~RIEN I (f~ ~:./~4~_~ ~ '~/~-~
~ Its: ~-] ~_~
SIGNATURES CONTINUE ... ~ ~//~ .
6
~-X o~_~
LINDA O'BRIEN ,~:. C,
BARRY W. O'BRIEN, INC.
BARRY PRESIDENT
APPROVED AS TO FORM: APPROVED AS TO FORM:
GRANTOR~/~ CITY:
Johns~ & ~ Bartz & ~arberg LLP
AttOrneys for Grantor Specia~ Counsel for City
7
STATE OF CALIFORNIA,
COUNTY OF San
On ]3~(!emh~.r 5: lC~g7 , before me, Sharc)n ~,l.
, a Nota~ Public in and for said County and State, personally
appeared . ~A~Y ~_ n'~RTFN A~D Z.T~A
~y ~n~. ~or proved to me on
FOR NOTARY SEAL OR STAMP
the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(les), and that by his/her/their
signature(s) on the instrument the person(s), or
J
the entity upon behalf of which the person(s)
acted, executed the instrument.
~h~n ~ri~man
STATE OF CALIFORNIA,
COUNTY OF ]' S.S.
On , before me,
_, a Notary Public in and for said County and State, personally
appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) lo be FOR NOTARYSEALORSTAMP
the person(s) whose name(s) is/are subscribed to
the wilhin instrument and acknowledged to me that
he/she/they executed the same in his/her/their
authorized capacity(les), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
TE 160 Legal (2-§4)
This form is furnished by Chicago Title Company
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28 EXHIBIT 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE CITY OF ENCINITAS
505 So. Vulcan Ave.
Encinitas, CA 92024
Attention: City Clerk
Exempt from Recording Fee
__ Exempt from Documentary Trnnsfer Tax
Pursuant to Government Code Section 6103
__Pursuant to R&T Code 119~2
(Space above this line for Recorder's use)
GRANT DEED
San Diego County
Assessor's Parcel Number: 258~111-23 [ ] All
[X] Portion
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BARRY O'BRIEN, LINDA O'BRIEN, and BARRY Oo'o4~R6~/E,,,~, INC,, a California corporation
HEREBY GRANT TO
THE CITY OF ENCINITAS, A MUNICIPAL COR ATI
OF THE STATE OF CALIFORNIA,
all rights, interests, or title to the real propert- located i
of California desert · . . y n ,.ne Lily ol l~nclnuas, unty of ~ Die o, State
bed In Exhibits A attached hereto and Incorporated herein ~~nce. g
I~WI, TNES. S WHEREOF, the grantor hereto has caused this Grant Deed to be executed
of this ~ day of ~_J.)..&.~?.~c.~/_ , 1997. ' as
LINDA O'BR1EN
·
'5 B^RRV o BRIAN, INC., a C " i .corpor tio.
Toh,~oismt°~,ce, rti..f,Y,r.th?t__t,h..e_in__te?_st in real property conveyed by '
~.,.~r% ~.n.~lJ.~ o ~RIEN, and BARRY O'BRIEN, INc tth~s'Gr-a'nt Deed, from BARRy
o the L;ity of Encinitas, is hereby
accepted by the undersigned on behalf of the City of Encinitas pursuant to authority conferred by
Resolution of the City of Encinita8 and the grantee consents to reeordat|on thereof by its duly
authorized officer.
The City of Encinitas, a municipal
corporation
Dated: /~-//~'~//~/7-. _ By:.~
OCT ~13 '97 O?:ZSAH CITY OF EHCIHITAS P.~G
EXHIBIT
· PARCEL 1:
All that po~tlon of Peroe! I of Percel Map No. 3037, w~thh~ the City of Encinita% County
of San Diego, State of California, recorded in the o~ce of the San Diego County
Recorder on September 12, 1974, described as follows:
Beginning st the northwest corner of said Parcel l, thence easterly along the northerly
parcel line of said parcel North 87°18'06,, East, a distance of 25=00 feet (North 87°19,31"
East per Parcel Map No. 3037); thence depan'hg said parcel line South 31o23,16,, F-ast,
17.25 feet; thence southeasterly along a curve concave to the southwest having a radius of
430.00 feet, through a central angle of 16°42'27',, a distance of 125.39 feet to a point ora
reverse curve; thence southeasterly along a ctuve concave to the northeast having a radius
of 32.00 feet, t, lu'ou~h a central angle of 69o31,19,,, n distance of 3g.83 feet; thence South
84°12'08'' East, 47.19 feet; thence southeasterly along n curve concave to the southwest
having a radius of 875.00 feet, through a central angle of 7°45'51'; a distance of 118.57
feet to the etsterly p~reel line of sand Parcel 1; thence southerly along sand east parcel line,
South 09°49'49" East, 2.86 feet (South 09048'57" East); thence South 68~40'01,, East,
12.12 feet (South 68°37'12,, ]East, 12.00 feet); thence South 21046'26'' West, 20.01 feet,
(South 21°22'48'' West, 20.00 feet) to a point on the northerly right-of-way line of
F-nelnitas Boulevard; said right-of-way llne being the Southerly llne of Parcel 1; thence
along said right-of-way nm~hwesterly along a non-tangent curve concave to the
Southwest a radial to wldch bears North 14°.15'16" East (North 14o16,13'' ]East) having a
radius of 851.00 feet, through a e~t~al angle of 8°27'24" (8o28,21,,), a distance of
125.61 feet (125.84 feet); thence along said right-of-way line North 84°12,08'' West,
127.21 feet (North 84°12'08,, West, 127.00 feet ); thence northwesterly along a cra-ye
concave to the Northeast having a radius of 20.00 feet~ thtongh a central angle of
80°08'50" (80°08'50"), a d~stattce of 27.98 feet to a point on the easterly right-of-way
line of Saxony Road, as de~ned by Road Survey 700-I, approved on April 19, 1971 by
the County of San Diego; thence along said easterly r~ght-of-way line North 04o03,1g,,
West ( No~th 04003' I g" West ), a distance of 164.61 feet to the point of beginning.
ML5651
BA$1~D ON I~CORD DATA AS SHOWN ON I~XHIBIT "A" THE AREA FOR.
PARCEL I IS HEREBY CI~RTI~IED TO BE 14,838 SQUARE FEET.
ALAN D. ARCHIBALD
RCE 21869
STATE OK CALIKoI3NIA,
COUNTy OF ~ SAN DIEGo }
~- --,heforo me ....... Sha~ N. ~r~d~an
_, n Nolmy Public I~ end for said Counly
.m,~,aemry evidence) Io be ~'~ ...... -
the wllhln In~lrumenl and ~cknowledgod Io me Ibaf
he/she/Ihey exes,led Ihs samo In hls/het/Ih~lr
~ulhorlzed enpaelfy(le~}, and Ih
signature(s) on the In~lrum.-, ~ by blg/her/Ibelr
Ihs chilly '~n behalf of which Ihs Person(R)
-~,- mo person(~}, or
acfed, eXeeuled Ihs Inslrumenl.
WIfN~SS ~and ~nd official seal ' ............ ' .....
STATE OI~ CALIffOr~NiA,
COUNry OF__ } S.S.
On
- , before
Pnr~onnlfy ~nown fo me (or proved Io me
whose n~me(~) Is/are ~ubserlbed
the Person(s) evidence)
he/~hg/Ihey execufe~nd acknowledged Io me
a~lhorlz~d capaelfy(leg), nnd
the
Chilly Upon behalf of which IhS
acted, execuled Ihs In9Irumenl.
WITNESS my hand .nd o'lelal goal
Sighting
Recording Regueste~By:
City of Encinit~
When Recorded Mail to:
City Clerk
city of Encinitas
505 South Vulcan Avenue
Encinitas, CA 92024
FOR THE BENEFIT OF THE CITY
~ ., . SPACE ABOVE FOR RECORDER's USE ONLY
Assessor's Parcel ~
No. 258-111-23 ~ ~[,/<{~,~b<~ Project No.: CMS96D
~ c'.~'.~ e~ W.O. No..
- , ·
sarry O Brlen, hereinafter calle~GPJ~NToR
hereinafter ~if
called GRANTEE, an easement for excavation and
embankment slopes for a public highway upon, Over and across that
certain real property in the City of Encinitas, County of San
Diego, State of California, described as follows:
SEE EXHIBIT "A" ATTACHED HERETO AND M jUDE A P;LRT HEREOF BY THIS
REFERENCE,
Th~ Grantor hereby further grants to th~ CITY OF ENCINITAS the
privilege and right to extend drainage sfru
and embankment clones b .... = ...... ctures and excava on
~ =~u~U ~ne llm . ti
right-of-way where re~ir-~ ~^- ~ ~t~ of the here~n describ
=- ~ ~
said CITY Highway. RESERVING Unto grantor of the above described
parcel of land, his successors or assigns, the right to eliminate
such slopes or portions thereof, when in the written opinion of the
City Engineer of Grantee, the necessity therefore is .removed by
substituting other protection or support, provided such
substitution is first approved in writing by the City Engineer.
The Grantor hereby further grants to Grantee all trees, growths
(growing or that may hereafter grow), and road building materials
within said easement, including the right to take water, together
with the right to use the same in such manner and at such locations
as said Grantee may deem proper, needful or necessary, in the
construction, reconstruction, improvement or maintenance of said
highway.
The Grantor, for himself, his successor and a~signs, hereby waives
any claim for any and all damages to Grantor s remaining property
contiguous to the easement hereby conveyed by reason ~f the
~n, construction, landscaping'or maintenance of said highway.
Dated this ~ day of _~C {- }, 19~
IAignatureof Owners to be notarized.
ttach the appropriate i
acknowledgments. .
I certify on behalf of the City Council of the City of Encinitas,
pursuant to authority conferred by Resolution of said Council
adopted on November 9, 1994 that the City of Encinitas consents to
the making of the foregoing Slope Easement edlcatlon and consents
to recordation thereof by its duly authorized officer.
Director of Engineering Services
City of Encinitas
cov5703
2
~TATE OF CALIFORNIA.
COUNTY OF' ____:~e_gg_ } S.S.
On December 5, 1997
, before me, __ Sharon H Friedman
, n Nolmy Public In end for ,~ld ~Ounly ~*ld Rlale, Pmgmmlly
aOPee~ed ~RY ~. O'BRIEN AND LINDA O'BRIEN
lh~ porson(~) who~o
lhe wlthtn Inglrumenl ~nd ncknowledgod Io mo
he/sheflhey executed Ihe g~me In hl~lherlllmlr
Rulhorlxed cgpgclly(leg), end llml by htglherlthelr
~lQnnltlre(w) on Ihe In~lrOmenl Ibc person(n), or *~ ~**n~ r
Ibc entity upon behalf of which Ihe porson(~) !~ ~-~ I
ecled, execuled the Insltumenl. L
WI~NE~S m~nd ~d official ~e~l.
Slgnnlt,re
~ah~on ~
STATE OF CALIFORNIA,
COUNTY OF } S.S.
On
o~ ~nllsfaelory evidence) lo be [ ton ~OTAn~ ~FAL on sz~ -
the Pergon(9) who~e neme(~) 18/are ~ub~erlbed
Ihe wlfhln In~trumenl and Rcknowledged
he/~he/Ihey execuled lhe 8amc In hl~/her/lhelr
aulhorl~ed eepaelly(le~), and Ihal by hls/ber/lhek
~lgn~h.~(e) on lhe Inglrumenl Ihe per~on(~), or
lhe onllfy Upon behalf of which Ihe
acled, eXeeulod lbo Inetrumenl.
WITNESS my hand ~nd official
Slgnaftste
EXHIBIT "A"
PARCEL 12:
All that portion ofPa~cel 1 of Parcel Map No. 3037, within the City of Encinita~, County
of San Diego, State of California, recorded in the ofl~ce of the San Diego County
Recorder on September 12, 1974, described as follows:
Commellcing at the northwest comer of said P~rcel 1, thence easterly along the northerly
parcel line of said parcel North 87~18,06,, East, a distance of 25.00 feet (North 87o19,31"
East per Parcel Map No. 3037) to the TRUE POINT OF BEGINNING; thence continuing
alon$ said parcel line North 87018,06" East, a distance of 16.50 feet (North 87o19,31"
East) thence departing said parcel llne South 21°31,59" East, 24.00 feet; thence South
68°28'01'' West, 4.00 feet; thence South 21031'59TM East, 23.00 feet; thence South
68°28'01'' West, 4.02 feet; thence northwesterly along a non-tangent curve concave to the
southwest, through a centzal angle 16°42'27',, a distance of 35.65 feet; thence North
31'23'16" West, 17.25 feet to the TRUE POINT OF B]EGINNING.
02T ~ '97 07:~GAM £ITY OF E~ZIHITAS
Ir AS~M~F1~ C~RTIFICATION
BASED ON RECORD DATA AS SHOWN ON EXH~IT "A" THE AREA FOR
PARCEL 12 15 HEREBy CERTilrlED TO BE 463 SQUARE FEET.
ALAN D. ARCtHBALD
RCE 21 ~69
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EXHIBIT 2
ASSIGNMENT OF CONDEMNATION PROCEEDS
Pursuant to a Release and Seltlement Agreemenl enlered into on July 2, 1997, by
and between Mobil Oil Corporation. Barry O'Brien, Linde O'Brien and Barry O'Brien, Inc.,
a copy of the first page of which Release and Settlement Agreement is attached hereto as
Exhibit "A" and by reference made a pad hereof, an escrow for Ihe purchase of certeln real
property commonly known as 310 Encinitas Boulevard, Encinitas, California was opened
by Barry O'Brien, Inc., on Oclober 6, 1997.
Following the opening of that escrow, Barry O'Brien, Inc entered into a later
settlement agreement ("Second Agreement") with the City of' Encinitas in a condemnation
action filed by the City on July 22, 1997' Said Second Agreement (e copy bf which is
attached hereto as Exhibit "B" and by reference made e pad hereof) includes the safe by
Barry O'Brien, Inc., to the City of 1 ) fourteen thousand eight hundred IhiHy-eight square
feet (14,838 sq fl) of the subject property for roadway expansion and utility relocation;
and 2) a four hundred sixty-three square foot (,~63 sq. ft.) slope easement at the northwest
corner of Ihe property,
Pursuant to the Second Agreement the City of Encinitas has agreed to pay to Barry
O'Brien, Inc., the total of three hundred and fifty thousand dollar ($350,000) in exchange
for the release of all compensation claims, includir~g bul not limited 1o prospective
severance and business damages. The City and Berry O'Brien, Inc., retain all righls and
remedies with respect to any breach of the Second Agreement.
In consideration for a loan Io purchase 310 Encinitas Blvd. from Mobil Oil
Corporation for one million, one hundred and Ihirty Ihousand dollars ($1,130,000) Barry
O'Brien, Inc., hereby assigns the three hundred fifty thousand dollars ($350,000)
settlement amount Io Valle de Oro Bank, the lender in lhis purchase transaclion wilh Mobil
Oil Corporation.
The City of Encinitas will deposit it's check, payable Io Valle de Oro Bank, into an
escrow to be opened to accomplish this transaction between the City, Barry O'Brien and
Valle de Ore Bank, . escrow officer shall et the close of~d escrow transfer title lo the
above-referenced Iquare footage to the City of Encinites and release the three hundred
fifty thousand dollars ($350,000) directly Io Valle de Ore Bank, whereupon lhe bank will
Immediately credit the Barry O'Brien, Inc., loan balance by Ihe same amounl
Executed this.~,~, day of-No~=~13'b-~1997, at ~:'/t/d~,/c//i;,/;,~,~TM , California.
~/Barry O'Bden, Inc
?ar[y O'Br~n, President ~'
Assignor/~,ondemnee
Cily of Encinifas
By¸
Ifs:
Condemnor
Valle de Ora Bank
By'
lis:
Assignee/Lender
Assignmen! Of Condemnaflot~ Prncee(1$
Page 2 of 2
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EXHIBIT 3
PAGE, 0~;~
The parties hereto, Barry O'Brl~n, Lind~ O'Brien, B~ry O'Bfien, InC. ·
(collectively, ,,O.Bfien,9 and Mobil Off Co~omfion (,,Mobil.9 ague e~ follows:
O~Bfien,
a~ce~ to ~he ~o~ located at 310 Enc~t~ Boulev~ Eneinitas, California (tho
'~mP~") ~ is ne~ss~ to c~piete ~y invesfigafon or ~eme~afion of confutation
on ~e P~, inelud~g, but not l~ited to. pro~d~g, ~thout Jnt~erenee ~ no~fl
se~i~ ~fion
the
Its:
Dated:
MOBIL OIL CORPORA'HON
By:__ .
Its: ,_~ttomev !n Fa~t
I'IOU 1~, '97 1~:07 PAGE 003
· Approved as ~ 'forme
K~T OSB~AUOH
~A s. DO~
~~0~ ~$TON, 9E~S~OOF,
ROC~FORT, R~CAVA &' M~eC~S~ LLP
Martha 8. Dory, Esq. ~
A~/omeys/'or MOBIL OIL CORPORATION.
KEVIN K. $OHN$ON
JOHNSON &'McCARTHY
----_
At~orney~ for Barry O~Brien,.
Llnda OrBfien and Barry O'Bfien, Inc.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
THE C1TY OF ENCINITAS
505 So. Vulcan Ave.
Enclnitas, CA 92024
Attention: Director Engineering Services
Exempt from Recording Fee
Pursuant to Government Code Section 6103
line for Recorder's use)
MEMORANDUM OF COVENANT RE: ACCESS
Pursant to that certain Acquisition of Real Property Agreement
("Agreement") dated November ~_,~1997, between the City of Encinitas, a
municipal corporation ("City"), and BARRY O'BRIEN, LINDA O'BRIEN and
BARRY W. O'BRIEN, INC. (collectively "Grantor"), and binding on heirs, executors,
administrators, successors and assigns, NOTICE IS HEREBY GIVEN of the following
covenant concerning access to Assessor Parcel No. 258-111-23, commonly referred to
310 Encinitas Blvd., in the City of Encinitas, County of San Diego, State of California:
City will continue to allow two driveway access points from Encinitas Blvd.
east of the future Saxony Road Re-alignment and one driveway access point on
Saxony Road. These three driveways and access points will remain in substantially
the same size at the discretion of Grantor so long as the service station use
continues. Upon change in use, the number of driveways and access points shall be
at the discretion of City.
City agrees to maintain reasonable access to Grantor's remaining property at
all times during construction of its Project (as defined Jn said Agreement). If
necessary, reasonable access during construction may be limited to one driveway.
Dated this [--" day of November, 1997, at San Diego, California.
/J<~v"in K.~hns~on, ~sq. By:(
At, heys for Grantor '] Linda D. Bartz,/Esq.
Special Counsel for City
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28 EXHIBIT
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EXHIBIT 5
,~.~) (N68°39'46'W 12.12 46 26'E 20J
' ' per Map No. 1322 (N21°46'41"E 20J
/~/ "09'49'49'W 2.81~ per Map No. 13;
(N09'49'34~W 2.84
per Map No. 13226)
194.00
No. 13226~
[NOg'4g'34'W
258-111-23 ~o o
_ MOBIL OIL go ~ ~ ,
~ CORP. ,, o
~ PAF{ ' ~ ~;'~' . .
- PM 3037
oc
'
NO4'O3'18'W 164.61
. o~' .o~'~~
~?~ "'' '"""':':':':::
-. ~ :: PORTION OF CITY DRAWING NUMBER OOOgSI
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28 EXHIBIT 6