1997-622198Recording RequestedW: ) ) DOC
City of Encinitas
· Dec 09, 1997 8:00 AM
When Recorded Mail to:
City Clerk ~FICI~
City of Encinitas $~ DIE~ ~OUN~ ~DER'~ OFFICE
505 South Vulcan Avenue G~ORY J. ~ITH, ~TY RECORDER
Encinitas, ~ 92024 ~EE$: 0.~
S~PE ~E~NT ~R CI~ HIG~AY
Assessor's Parcel Project No.: CMS96D
No. 258-111-23 W.O. No.:
Barry O'Brien, hereinafter called GPJLNTOR, does hereby grant,
convey and dedicate to the CITY OF ENCINITAS, State of California,
hereinafter 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 MADE A PART HEREOF BY THIS
REFERENCE,
The Grantor hereby further grants to the CITY OF ENCINITAS the
privilege and right to extend drainage structures and excavation
and embankment slopes beyond the limits of the herein described
right-of-way where required for the construction and maintenance of
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 assigns, hereby waives
any claim for any and all damages to Grantor's remaining property
contiguous to the easement hereby conveyed by reason of the
location, construction, landscaping or maintenance of said highway.
cov5703 1
Dated this ~ day of
Signature of Owners to be notarized.
Attach the appropriate 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 Dedication and consents
to recordation thereof by its duly au~ho~er.
Date: /Z-~;~'~ B~y: ~/~,~5_ ~ ~? ~/,f-
/~e AYan ~/Archiba~df
Director of Engineering Services
City of Encinitas
cov5703 2
815
' STATE OF CALIFORNIA,
COUNTY OF ~an~Diego_ } S.S.
On December 5, 1997
.... before me, Sharon M. Friedman
, a Nolary Public in and for said County and State, personally
appeared __,BARRY W. O'BRIEN AND LINDA O'BRIEN
P~~o~-proved to me on
the basis of satisfactory evidence) 1o be FOFI NOTARY SEAL OR STAMP
the person(s) whose name(s) is/are subscribed lo
the within Inslrumenl and acknowledged to me that
he/she/they execuled the same in his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) ]1\'~.. _ammegocoun~. _
acted, executed the instrument. ·
WITNESS m/~and and official seal.
Signature ~~
q~h~k.~on N~. Friedman
STATE OF CALIFORNIA,
COUNTY OF } S.S.
On
, before me,
_, a Notary Pt;l~lic~-n ~nd for-sa~(~ Cou and Slate, personally
appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) lo be FOR NOTARy SEAL OR STAMp
the person(s) whose name(s) is/are subscribed
the within Instrument and acknowledged to me that
he/shelthey 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 entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature
This lorm is fulnished by Chicago Title Company
OCT ~:'~ "g? O?~.'-'E~qH C~T'F hlIT~!B P,~/~
EXHIBIT "A"
PARCEL 12:
All that pop'don ofPar~c[ 1 of Parcel Map INo. 3037, w~thln the City of Encinkas, County
Of San Diego, State of C~ilf'nm~ ~'ecorded in the ot~.ce of the Sa~ Diego County
P~ecord~r on September 12, 1974, described as follows:
Commencing at the northwest comer of said P~rcel l, thence easterly along the northerly
pazcel line of sald p~rcel l~orttt $7°18~06'' East, a distance of 25.00 feet (Norr. h 87°19'31"
East per P~rcel Map ~To. 3037) to the TRUE POINT OF BEGIIVS~NG; thence contiuuing
aion~ said p~rc¢l line North $7°15'06TM East, a distance of 16.50 feet ('North 87°19'31"
East) thence departing said. p~rcel line South 21031'59" £ast, 24.00 feet; thence South
68°25'01" West, 4.00 feet; thence South 21031'59'' East, 23.00 feet', thence South
65°25'0F' West, 4.02 feet; thence northwesterly along a non-tangeat curve concave to the
sou~west, tkrou~h a central angle 16~42=27TM, a distance of 35.65 feet; thence North
31°23' 16" West= 17.2~ feet to the TRUE POI~TT OF B~GINNING.
IV~5651
OCT £3 '97 07:~6~M C~T¥ :T~S P.5/6
817
EASEMENT CERTIFICATION
BASED ON RECORD DATA AS SHOWN ON EXI-IlBIT "A" TI-IE AR~A FOIl.
PARCEL 12 IS I4]EREBY CERTIFIED TO BE 463 SQUARE FEET.
ALAN D. ARCHIBALD
RCE 21869
2
3
5
7
8
12
13
17
20
21
22
23
2~
25
26
28i EXHIBI~ 2
819
ASSIGNMENT OF CONDEMNATION PROCEEDS
Pursuant to a Release and Settlement Agreement entered into on July 2, 1997, by
and between Mobil Oil Corporation, Barry O'Brien, Linda O'Bden 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 part hereof, an escrow for the purchase of certain real
property commonly known as 310 Encinilas Boulevard, Encinitas, California was opened
by Barry O'Brien, Inc., on October 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 (a copy of which is
attached hereto as Exhibit "B" and by reference made a part hereof) includes the sale by
Barry O'Brien, Inc., to the City of 1 ) fourteen thousand eight hundred thirty-eight squar~e
feet (14,838 sq ft.) of the subject property for roadway expansion and utility relocation;
and 2) a four hundred sixty-three square foot (463 sq. ft.) slope easement at the northwest
corner of the property.
Pursuant to the Second Agreement the City of Encinitas has agreed to pay to Barry
O'Brien, Inc., the total cf three hundred and fifty thousand dollar ($350,000) in exchange
for the release of all compensation claims, including but not limited to prospective
severance and business damages. The City and Barry O'Brien, Inc., retain all rights and
remedies with respect to any breach of the Second Agreement.
In consideration for a loan to purchase 310 Encinitas Blvd. from Mobil Oil
Corporation for one million, one hundred and thirty thousand dollars ($1,130,000) Barry
O'Brien, Inc., hereby assigns the three hundred fifty thousand dollars ($350,000)
settlement amount to Valle de Oro Bank, the lender in this purchase transaction with Mobil
Oil Corporation.
The City of Encinitas will deposit it's check, payable to Valle de Ore Bank, into an
escrow to be opened to accomplish this transaction between the City, Barry O'Bden and
$20
Valle de Oro Bank. The escrow officer shall at the close of said escrow transfer title to the
above-referenced square footage to the City of Encinitas and release the three hundred
fifty thousand dollars ($350,000) directly to Valle de Otc Bank, whereupon the bank will
immediately credit the Barry O'Brien, Inc., loan balance by the same amount.
Executed this_,,¢' day ofqN~r~r?i'ib-'~ 997, at ,~/w'd';,/f./t ;~'% . California.
Barry 0 Brien, Inc.
Barry O'Br/~n, President
Ass'gnor/Condemnee
City of Encinitas
By:
Condemnor
Valle de Oro Bank
By:
Its:
Assignee/Lender
Assignment Of Oot~demt~atiott Procee(ls Page 2 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 EXHIBIT 3
Iq0U !£ '97 13=07 - .PC~GE·002
822
ACCESS AGREEMENT
~e p~es he. to, B~ O'BH~, Lin~ O'B~e~ B~ O'B~, Inc, ·
(coHe~vely, "O'Bfi~") and Mobil Oil Co.option ("M~") a~ee as follows:
O'Bfien, ~s/its ~ccess0rs, hc~ ~d ass{~, ~11 ~e Mobil ~ such
acce~ to the ~o~ located at 310 Enc~t~ Boulev~ ~ncinitas, C~omia
on ~e ~, mclu~g, but not l~t~ to, prolog, ~thout
s~ s~don op~do~, ~ce for ~y ~a~.equi~m~t ~eces~ to
D~ted:
B O' en ""
Dated: / ~' - %' ? 2 ', ...........
Lin~ O~Hen
Inc.
By: ~~
Its:
Dated: MOB~ O~ CO~O~ON
Name:, Elizabefl~LH~egelin
Its: ...~,ttome¥ In Faqt
Mart, ha S. Dory, Esq.
Attorneys for MOBIL OIL CORPORATION
KEVIN K. JOHNSON
JOHNSON & McCARTHY
eyre K..Johnson, ESq.
At~omey~ for Bart70~Brien,·
Linda O~Brien and Bray O'Brien, Inc.
RECORDING REQUESTED BY 8 2 4
AND WHEN RECORDED MAIL TO:
THE CITY OF ENCINITAS
505 So. Vulcan Ave.
Encinitas, CA 92024
Attention: Director Engineering Services
Exempt from Recording Fee
Pursuant to Government Code Section 6103
(Space above this line for Recorder's use)
MEMORANDUM OF COVENANT RE: ACCESS TO REAL PROPERTY
, Pursant to that certain Acquisi~i~on of Real Property Agreement
(Agreement") dated November -/,% ,m1997, 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 in said Agreement). If
necessary, reasonable access during construction may be limited to one driveway.
Dated this/-J ~day of November, 1997, at San Diego, California.
Johnson &_,,Jkle~~ ~a'tz & McCarberg LLP
/K~n I~hh--sson, E-~q. ( / Linda D. Bartz,~sq.
Special Counsel for City
At~rneys for Grantor
z 825
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2O
21
22
23
24
25
26
27
28 EXHIBIT ~
2
3
4
5
9
ZO
~2
~3
Z5
Z9
2O
2Z
22
23
25
26
27
28 EXHIBIT 5
N~8~40'OI"Vv 1~_,i~: N21°46'26'E 20,0
(N68'39°46'W 12.1 20J
82'~ per Map No. per Map No. 13~
~ NO9*49'49'W 2.86
(NOg'49'3~W 2.84
per Ma~ No. 13226}
MOBIL OIL
CORP.
zw
~0 NO4'O3'aS'W ~64.6a
>~ 3~~ EXIST SAXONY
298.29 . ~~~- p~RS 700-1
'''"""""'"'" PORTION OF CITY DRAWING NUMBER O00GSI
2
3
5
?
8
9
~0
~2
~?
~8
20
2Z
22
2]
2~
25
2f
27
28 EXHIBIT 6