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2003-428273M Bell, REC Recoidin,,a requested by First A2nerican fill? When Recorded Mail Document To: City of Encinitas 505 S. Vulcan Encinitas, CA 92024 25388 DOC # L003-042-827a OFFICIAL RECORN SAN DIEGO COUNTY RECORDER'S OFFICL GREGORY J. SMITH, COUNTY RE(XiR17ER FEFR L'.00 WAY: 2 2p03ed7$77J USE SUBSTITUTION OF TRUSTEE AND FULL RECONVEYANCE 1" WHEREAS, City of Encinitas, a California Municipal Corporation was the original Trustor, Fidelity National Title Company, a California Corporation the original Trustee, and Robert H. Barelmann and Margaret L. Barelman, husband and wife the Beneficiary, under that certain Deed of Trust dated November 5, 2002 and recorded as Instrument no. 2002-1070875 on November 26, 2002 in book , page , Official Records of the county of San Diego, State of California, and WHEREAS, the undersigned Beneficiary desires to substitute a new Trustee under said Deed of Trust in place and stead of Fidelity National Title Company, a California Corporation now therefore, the undersigned hereby substitutes Robert H. Barelmann and Margaret L. Barelmann as Trustee under said Deed of Trust and Robert H. Barelmann and Margaret L. Barelmann as the substituted Trustee does hereby reconvey, without warranty, to the person or persons legally entitled thereto, the Estate now held thereunder. DATED: January 29, 2003 STATE OF CALIFORNIA COUNTY OF San Diego ® Y before me, E personally appeared Robert H. Barelmann Margaret L. Barelmann personally known to me (or proved to me on 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(ies), 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 ffici se r Signature 0 Robert H. Barelmann ' Beneficiary O��Mar�raL. -71 ki R bert H. Barelmann Substituted Trustee gao t L. Barelman Substituted Trustee ROBERT LUIS BONHAM N Comm. 6131BB29 in NOTARY PUBLIC-CALIFORNIA N Sin Diego Caumy ay Comm. Expirm, Augur S. 2005 FD-236 (Rev 91941, SUBSTITUTION OF TRUST & FULL RECONVEYANCE EXHINS89 THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THE EAST HALF OF LOT 7 OF TFTE NORTI•IWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THAT PORTION LYING WITHIN ROAD SURVEY NO.1796 TAKEN BY THE COUNTY OF SAN DIEGO BY FINAL ORDER OF CONDEMNATION RECORDED JANUARY 3, 1968 AS FILE NO.1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEET WIDE, 42 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO TI•IE STATE OF CALIFORNIA, RECORDED APRIL 6, 1965 AS FILE; NO. 60313 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER IN SAID SAN DIEGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2 INCH PIPE TAGGED "DIV.HWYS." BEING AT COORDINATES Y-335,887.14 FLET AND X-1, 680,010.03 FEET; THENCE ALONG BEARINGS AND DISTANCES BASED ON THE CALIFORNIA COORDINATE SYSTEM GRID ZONE VI AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTERLY BOUNDARY LINE AND THE PROLONGATION THEREOF, 90.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT HAVING GRID COORDINATES N-335,808.173 AND E-1,680,053.206 OF SAID GRID ZONE VI; THENCE NORTII 61°19'54" EAST, 24.37 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE "THROUGH A CENTRAL ANGLE OF 3°34'25",. A DISTANCE OF 302.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 57°45'29" EAST, 405.52 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE R1GI•IT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE, OF 15013'25", A DISTANCE OF 371.98 FEET; THENCE TANGENT TO SAID CURVE NORTH 72058'54" LAST, 418.15 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1400 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18°l 1'59", A DISTANCE OF 444.70 FEET; THENCE TANGENT TO SAID CURVE SOUTH 88049'07" EAST, 1443.17 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12035'05", A DISTANCE OF 307.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 78"35'48" EAST, 870.32 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1700 FEET; SAID POINT BEING ENGINEER'S STATION 89+61.70 B.C. IN THE CENTER LINE OF ROAD SURVEY NO.1796-65 ON FILE IN TIIE OFFICE OF THE COUNTY SURVEYOR 025390 IN SAID SAN DIEGO COUNTY AS SHOWN ON SHEET 4 OF SAID SURVEY; THENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 40"22'26", A DISTANCE OF 1197.92 FEET; THENCE TANGENT TO SAID CURVE SOUTH 61001'46," EAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114+57.30 B.C. IN THE CENTER LINE OF SAID ROAD SURVEY NO.1796-65; THENCE SOUTHL'ASTERI.Y ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3401 1' 14", A DISTANCE OF 895.02 FFOl'; THENCE TANGENT TO SAID CURVE NORTH 84°47'00" EAST, 689.81 FEET TO A POINT ON THE CENTER LINE OF ROAD SURVEY NO.682, A PLAT OF WHICH IS ON FILE IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52"02'49" EAST, 558.81 FEET FROM TBE EASTERLY TERMINUS OF THE COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAID CENTER LINE POINT ALSO IIAVING GRID COORDINATES; N-335,770.646 AND E 1,688,300,279 OF ZONE VI. s - h • _nrtiiag requeetcd by i,. ''irsl')nerical-Title )awj¢ Escrow No. 4306478-TS - -- P��i.._It ..:.-.1 ��k .,... =} o'.--° E. :, G'"•) Title Order No. 1283481-4 .. When Recorded Mail Document - and Tax Statement To: 57907 �;�'�?; (tlu i:GuN-i' :FcFi-:Ui:R v -- City Of Encinitas ;n'-GI;RY J. L]hITt6 l'.eiii�?'•` b�u;Li( ^, 505 South Vulcan Ave. Encinitas, CA 92024 J LF I IIIIIIIIIIIIIIIII I I 111111111111111 Hillloll 111IIIIIIIIIIIIIIIIIN 4 _.. . 2902-1070874 ©GN SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT DEED The undersigned grantor(s) declare(s) a-b Documentary transfer tax is $ ? X 1 computed on full value of property conveyed, or [ ) computed on full value less value of liens or encumbrances remaining at time of sale, [ ) Unincorporated Area City of Encinitas FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Robert H. Barelmann and Margaret L. Barelmann, husband and wife hereby GRANT(S) to City Of Encinitas, a California municipal corporation the following described real property in the City of Encinitas County of San Diego, State of California: Legal description as per exhibit "A" This deed is given in lieu of, and under the threat of, the exercise by Grantee of the power of eminent domain to acquire the herein described property for public purposes. DATED: November 5, 2002 STATE OF CALIFORNIA COUNTY OF --!;,Z-,w ,A ON before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. Witness my hand and official seal. Signature ;- Robert H. Barelmann �z Margar L. Bare Mann 7 OFFICIAL SEAT. 1 NEAL GANZ NOTARY PUBLIC CALIFORNIAT,, COMM. NO, 1,109685 SAN DIEGO COUNTY16, MY COMM. E.XF'. JUI. Y 162005 MAIL TAX STATEMENTS AS DIRECTED ABOVE FD-213 (Rev 7/96) GRANT DEED 5'7908 CERTIFICATION FOR ACCEPTANCE OF DEED THIS IS TO CERTIFY THAT THE INTEREST IN TIIE REAL. PROPERTY CONVEYED BY TIIE GRANT DEED DATED NOVEMBER 5, 2002 BY ROBERT H. BARELMANN AND MARGARET L. BARELMANN, AS GRANTOR, PURSUANT TO TIIE LAWS OF THE: STATE OF CALIFORNIA, IS HEREBY ACCEPTED BY THE CITY OF ENCINITAS, PURSUANT TO CITY OF ENCINITAS CITY COUNCIL ACTION ON NOVEMBER 20, 2002, AND THE CITY OF ENCINITAS, AS GRANTEE., CONSF,NTS TO 'THE'• RECORDATION BY ITS DULY AUTHORIZED OFFICER. DATED: November 2G. 2002 BY: /�� . .V anager, City.of 57909 EXHIBIT "A" THE, LAND REFERRED TO HEREIN IS SPTUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THE EASTHALM OF LOT 7 OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEP'1'ING'1'IIEIzEFROM 'I'IIAT' PORTION TYING WITHIN ROAD SURVEY NO.1796 TAKEN BY THE COUNTY OF SAN DIEGO BY FINAL ORDER OIL CONDEMNATION RECORDED JANUARY 3, 1968 AS FILE NO.1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEET WIDE, 42 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED APR.IT, 6, 1965 AS FILE NO- 60313 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER IN SAID SAN DIEGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2 INCH PIPE TAGGED "DIV.HWYS." BEING AT COORDINATES Y-335,887.14 FEET AND X-I, 680,010.03 FEET'; THL':NCE ALONG HEARINGS AND DISTANCES BASED ON THE CALIFORNIA COORDINATE SYSTEM GRID ZONE VI AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTLRLY BOUNDARY I.,INE AND THE PROLONGATION THEREOF, 90.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT HAVING GRID COORDINATES N-335,808.173 AND F..-I,680,053-206 OF SAID GRID ZONE VI;THENCE NORTH 61°19'54" FAST, 24.37 FEET TO THE BEGINNING OF A TANGENTCURVF, TO THE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGII A CENTRAL ANGLE OF 3°34'25", A DISTANCE OF 302.50 FEET; 'THENCE TANGENT TO SAID CURVE NORTH 57°45'29" EAST, 405.52 FEETTO THE BEGINNING OF A TANGENT CARVE TO THE RIGHT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAI. ANGLE OF 15013'25", A DISTANCE OF 37198 FEET; 'TI-IENCE TANGENT TO SAID CURVE NORTH 72"58'54" EAST, 418-15 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHTHAVING A RADIUS OF 1400 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGFI A CENTRAL ANGLE OF 18011'59", A DISTANCE OF 444.70 F.L'1?T; TI-IF.NCE TANGENT TO SAID CURVE SOUTH 88049'07" EAST, 1443.17 FEET TO THE BEGINNING OF A TANGENT CURVE'TO THE LEFT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12035'05", A DISTANCE. OF 307.50 FEF..T; THENCE TANGENT TO SAID CURVE NORTH 78035'48" EAST, 870-32 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE RIGHT RAVING A RADIUS OF 1700 FEET; SAID POINT BEING ENGINEER'S STATION 89461.70 B.C. IN TIIE CENTER LINE OF ROAD SURVEY NO.1796-65 ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR IN SAID SAN DIEGO COUNTY AS SHOWN ON SHEET 4 OF SAID SURVEY; THENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE. OF 40022'26", A DISTANCE OF 1197.92 FEET; THENCE TANGF,NT TO SAID CURVE SOUTH 61001'46," EAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114+57.30 B.C. IN THE CENTER LINE OF SAID ROAD SURVEY NO.1796-65, THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGII A CENTRAL ANGLE OF 3401 1' l4", A DISTANCE 01" 895.02 FEET; THENCE TANGENT TO SAID CURVE.. NORTH 84047'00" EAST, 689.81 FEET TO A POINT ON THE CENTER LINE OF ROAD SiJRVF,Y NO.682, A PLAT OF WHICH IS ON FILF, IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52-02-49" FAST, 558.81 FEET FROM THE EASTERLY TERMINUS OF THE COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SATD CENTER LINE POINT ALSO HAVING GRID COORDINATES; N-335,770.646 AND F- 1,688,300.279 OF ZONE Vl. r r Pee:ut'ding requested by 6*;;.• ;%irstAnzericartTitle pa" Eacrow No. 4306478-TS Title Order No. 1283481-4 When Recorded Mail Document To: Robert H. Barelmann and Margaret L. Barelmann 6510 Franciscan Rd. Carlsbad, CA 92009 <` HEGI CL'L`hi 'i I�EC3DHi " `3 UFFTGL ;EG]f r J. ; '. [ Ii{QEn 5'7911 rrk5: a.00 WAY: 2u> 1210T1,_ USE t6� SHORT FORM DEED OF TRUST AND ASSIGNMENT OF RENTS (T� THIS DEED OF TRUST, made November 5, 2002 between City Of Encinitas, a California municipal corporation herein called TRUSTOR, whose address is 505 South Vulcan Ave. Encinitas. CA 92024 Fidelity National Title Company, a California Corporation, herein called TRUSTEE, and Robert H. Barelmann and Margaret L. Barelmann, husband and wife herein called BENEFICIARY, WITNESSETH: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE, that property in San Diego County, California, described as: Legal description as per exhibit "A" DUE ON SALE: Anything herein to the contrary notwithstanding, in the event of a voluntary sale, transfer or conveyance of all or any portion of the property described herein, any indebtedness or obligation hereunder, shall at the option of the holder hereof, immediately become due and payable. TOGETHER WITH the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to and conferred upon Beneficiary by paragraph (10) of the provisions incorporated herein by reference to collect and apply such rents, issues and profits. For the Purpose of Securing: 1 . Performance of each agreement of Trustor incorporated by reference or contained herein. 2. Payment of the indebtedness evidenced by one promissory note of even date herewith, and any extension or renewal thereof, in the principal sum of $350,000.00 executed by Trustor in favor of Beneficiary or order. 3. Payment of such further sums as the then record owner of said property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so secured. INITIALS_ rO-221e IRev. 9/94) SHORT FORM DEED OF TRUST / ^ Page No. 1 of 4 APN: 216-1 10-42 • 0 To Protect the Security of this Deed of Trust, Trustor Agrees: By the execution and delivery of this Deed of Trust and the note secured hereby, that provisions (1) to (14), inclusive, of the fictitious deed of trust recorded in Santa Barbara County and Sonoma County October 18, 1961, and in all other counties October 23, 1961, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, viz: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 4.35 684 Kings 792 833 Placer 895 301 Sierra 29 335 Alpine 1 250 Lake 362 39 Plumes 151 5 Siskiyou 468 181 Amadnr 104 348 Lassen 171 471 Riverside 3005 523 Solana 1105 182 Butte 1145 1 Los Angelus T2055 899 Sacramento 4331 62 Sonoma 1851 689 Caleveras 145 152 Madera 810 170 San Benito 271 383 Stanislaus 1715 456 Cnluse 296 617 Marin 1508 339 San Bernardino 5567 61 Sutter 572 297 Contra Coate 3978 47 Mariposa 77 292 San Francisco A332 905 Tehema 401 289 Del Norte 78 414 Mendorino 579 530 San Joaquin 2470 311 Trinity 93 366 El Dorado 568 456 Merced 1547 538 San Luis Obispo 1151 12 Tulare 2294 275 Fresno 4626 572 Modoc 184 851 San Mateo 4078 420 Tuolumne 135 47 Glenn 422 124 Mono 52 429 Santa Barbara 1878 860 Ventura 2062 386 Humboldt 657 b27 MontewY 2194 538 Santa Clara 5336 341 Yolo 653 245 Imperial 1091 501 Napa 639 86 Santa Cruz 1431 494 Yuba 334 486 blyo 147 598 Nevada 305 320 Shasta 684 528 Kern 3427 60 Orange 5889 611 San Diego Series 2 Book 1961, Page 183887 which provisions, identical in all counties, (printed on the attached unrecorded pages) are hereby adopted and incorporated herein and made a part hereof as fully as though set forth herein at length; that Trustor will observe and perform said provisions; and that the references to property, obligations and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth in this Deed of Trust. The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to him at his address hereinbefore set forth. STATE OF CALIFORNIA COLjNTY OF OL N before me. rerVone personally appeared personally known to me ( s 1 to be the person4e) whose namefe) is/aso-sa4leexilsed to the within instrument and acknowledged to me that he,101 ekl+ey executed the same in his,War,' lte authorized capacity(iee), and that by his/4omlitK* signatureW on the instrument the personW+, or the entity upon behalf of which the person(s4 acted, executed the instrument. Witness my hand and official seal. ty PYEncini s, a California "unidipal corporation U '�BOR:C3 ERVON4.NOTARY 3ICAI�JFO4RNIA LJSAN DIECOON7Y n COMM. EXOV. 29 20g5 -� FD-221 B (Rev. 9194) SHORT FORM DEED OF TRUST Page No. 2 of 4 APN: 216-1 10-42 C n { ry ' . DO NOT RECORD The following is a copy of provisions (1) to (141, incluaiva, of the fictitious deed of trust, recorded in each county in California, as stated in the foregoing Dead of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES: (1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for fabor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, pruna and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations heroin not excluding the general. (2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Truster. Such applicalion or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's foes in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and In any suit brought by Beneficiary to foreclose this Deed. (4.) To pay' at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock; when due, all inr.umbrnncas, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto: all costs, fees and expenses of this Trust. Should Truster fail to make any payment or to do any act as herein provided, thon Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Truster and without releasing Truster from any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any incumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees, (5) To pay immediately and without demand all sums so expanded by Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in affect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. (6) That any award of damages in connsciloo with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the soma manner and with the same affect as above provided for dispoaitinn of proceeds of fire or other insurance. (7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (8) That at any lime or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension agreomant or any agreement subordinating the lien or charge hereof- (9) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Dead and said note to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such raeonveyance of any matters or farts shall he conclusive proof of the truthfulness thereof. The Grantee in such reconveyancB may be described as "the person or persona legally entitled tharBto." Five years after issuance of such full reconveyanca, Trustee may destroy said note and this Deed (unless directed in such request to retain them). (10) That as additional security, Truster hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Truster the right, prior to any default by Tmsior in paymant of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become duo and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to he appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby securad, enter upon and take possession of said properly or any part thereof, In hie own name sue for or otherwise collect such, rents, issues, and profits, including those past due and unpaid, and apply the same, leas coats and expenses of operation and collection, including rensonabla attorney's fees, upon any indebtedness secured hereby, and In such order as Beneficiary may determine. The entering upon and taking possession of said property, file collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any dafaulr or notice of default hereunder or invalidate any act done pursuant to such notice. (11) That upon default by Truster in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby. INITIALS FO-2216 illev. 9/94) SHORT FORM DEED OF TRUST Page No. 3 of 4 APN: 2 16- 110-12 . 00 NOT RECORD 57 914 After fhe spas of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as than required by law, Trustee, without demand on Truster, shall sell said property at the time and place fixed by it in said notice of sale, either as R.whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash of lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the proceeding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary ashereinafter defined, may purchase at such Sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expanded under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums than secured hereby; and the remainder, if any, to the person or persons legally entitled thereto. (12) Bonafluiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or suposasors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and pages where this Deed is recorded and the name and address of the new Trustee. (13) That this Dead applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns, The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not named as Beneficiary heroin. In this Deed, whenever the context so requires, the masculine gander includes the feminine and/or neuter, and the singular number includes the plural. (14) That Trustee accepts this Trust when this Dead, duly executed and acknowledged, Is made a public record as provided by law. Tnlslse is net obligated to notify any party hereto of pending sale under any other Dead of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. INITIAL/ REQUEST FOR FULL RECtlNVEYANCE T Fidelity National Title Company, a California Corporation, TRUSTEE: The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured by said Dead of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to rancel all evidences of indebtednesR, secured by said Dead of Trust, delivered to you herewith, together with the Said Dead of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same. Dated Please mail Reconveyanre to: Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Beth original documents must be delivered to the Trustee for ranrallRtion before reconveyance will be made. STATE OF CALIFORNIA COUNTY OF ME before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose natne(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/har/their authorized capacity(ies), and that by his/her/their signaturefs) 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 FD-221 B (Rev. 9194) SHORT FORM DEED OF TRUST Page No. 4 of 4 ! 9 57916 IN SAID SAN DIEGO COUNTY AS SHOWN ON SHEET 4 OF SAID SURVEY; THENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVETHROUGH A CENTRAL ANULL OF 40°22'26", A DISTANCE OF 1 197.92 FEET; TTIFNCE TANGENT" TO SAID CURVE SOUTH 61001'46," FAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENTCURVE TO THE LEFT IIAVTNG A .RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114+57.30 B.C. IN TIIE CENTER LINE OF SAID ROAD SURVEY NO.1796-65; `1'TIENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34011'14", A DISTANCE OF 895.02 FEET; THENCE TANGL'•NT TO SAID CURVE NORTH 84047'00" EAST, 689.81 FEET TO A POINT ON THE CENTER. LINE OF ROAD SURVEY NO.682, A PLAT OF WHICH IS ON FILE IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POIN'.T BEARING SOUTH 52°02'49" EAST, 558.81 FEET FROMTHE HE EASTF.,RT,Y TF..RMINTJS OF THE.. COMMON BOUNDARY .LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAID CENT"FR LINE POINTALSO HAVING GRID COORDINATES; N-335,770.646 AND E- 1,688,300.279 OF ZONE VI. • 0 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW 1NSTRiTCTTONS ("Agreement") is entered into as of this date of w . war r5c -1 , 2002, ("Effective Date"), by and between THE CITY OF ENCINITAS, a Calitirrnia municipal corporation, as buyer ("Buyer"), and Robert H. Barelmann and Margaret L. Barelmann, as individuals, as seller ("Seller"), with reference to the following facts: RECITALS A. Seller is the owner of the real property described in Exhibit "A" attached hereto (the "Barelmann Property"). B. Buyer is the owner of the real property described in Exhibit "B" attached hereto and commonly known as the James MacPherson parcel (the "City Property'); notwithstanding the current zoning designation of the City Property, said property is not presently used as a park. C. Buyer desires to purchase the Barelmann Property from Seller for certain consideration and pursuant to the terms and conditions specified herein; said consideration includes both a monetary component and the conveyance of the City Property to Seller. D. Buyer has completed a Phase 1 Environmental Assessment lirr both the Barelmann Property and City Property at Buyer's sole cost and has provided copies to Seller for purposes of conducting due diligence pursuant to this Agreement. E. This Agreement constitutes a purchase and sale agreement and joint escrow instructions to the Escrow Agent identified herein. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1 PURCHASE PRICE 1.1 Purchase Price. The total value which Buyer agrees to pay and Seller agrees to accept for the Barehnann Property shall he One Million One Hundred and Fifty Thousand dollars ($1,150,000) in cash and conveyance of title to the City Property from Buyer to Seller in which the parties agree said Property to be valued at Two Hundred and Fifty "Thousand dollars ($250,000), a total purchase price value of One Million Four Hundred Thousand Dollars ($1,400,000). 1.2 Deductions from Seller's Proceeds. The Escrow Agent identified in Article 2 hereof shall deduct Irom the proceeds payable to Seller at Close of Escrow (as defined in section 2.4) • 0 any amount necessary to satisfy the following items with respect to the Barelmann Properly only: (a) Any delinquent taxes, together with penalties and interest thereon, and any delinquent assessments or bonds. (b) Seller's pro-rata share of non -delinquent taxes and assessments owed by the Seller for the assessment year in which the escrow closes, if unpaid at Close of Escrow. (c) Demands of mortgagees and trustees in accordance with conditions of notes and other obligations secured by mortgages and deeds of trust. (d) Demands, including charges and costs, of any other lien holders of record, including creditors with recorded abstracts o1 judgment. 1.3 Pavmcnt of Purchase Price: Delivery of City Property. Buyer shall deposit into Escrow no later than the Close of Escrow the following: (1) The sum of Eight Hundred Thousand dollars ($800,000) in cash, by wire transfer, payable to Seller upon the Close of Escrow; and (2) a Grant Deed conveying the City Property to Seller, duly executed and acknowledged by each individual or entity comprising Buyer and in recordable fonn, deliverable to Seller upon close of Escrow. IA Balance of Purchase Price. The remaining sum owing towards the total purchase price value of Three Hundred Fifty Thousand dollars ($350,000) shall be paid by Buyer to Seller upon the earlier to occur of the following: (a) at Close of F,scrow, provided Buyer has completed its sale of the City owned parcel on Camino Del Rancho (APN 264-154- 10), or (b) following Close of Escrow on the completion of the sale of said parcel, but in no event later than Eleven (11) months after the close of escrow said included in the Promissory Note in substantially the firm of Exhibit "C " attached hereto, secured by an insured first Deed of Trust (on Title Company form including due -on -sale clause) against the Barelmann Property. ARTICLE 2 ESCROW 2.1 Escrow fluent. Fidelity National Title, whose address is 191 North El Camino Real, Suite 204, Encinitas, California, 92024 ("Escrow Agent") is designated, authorized and instructed to act as Escrow Agent pursuant to the terms ofthis Agreement. 2.2 Opening of Escrow. The opening of escrow shall be the same day that both parties have executed this Agreement or as soon thereafter as possible as the parties may mutually agree ("Opening of F,scrow") (the resulting escrow hereafter called "Escrow"). Escrow Agent shall acknowledge the date of Opening of Escrow and its agreement to act as the Escrow Agent hereunder by: (a) executing the Consent of Escrow Agent ("Covyseu,C) 2 attached hereto as Exhibit "D", and (b) promptly delivering a copy of the executed consent to Seller and. Buyer. 2.3 Escrow Instructions. This Agreement shall constitute initial escrow instructions to Escrow Agent. The parties shall execute a copy of Escrow Agent's general conditions and any additional escrow instructions reasonably required by Escrow Agent to consummate the transaction provided for herein after Opening of Escrow; provided, however, such additional escrow instructions shall not modify the provisions of this Agreement, unless such instructions: (a) state the modifications in full, and (b) are signed by the parties. In the event of any conflict between the terms of this Agreement and the terns of Escrow Agent's general conditions, the terms of this Agreement shall prevail. 2.4.1 Close of Escrow. "Close of Escrow" means the date Escrow Agent, pursuant to the temrs, covenants and conditions of this Agreement, records the grant deeds to the Barelmatm Property in favor of Buyer and the City Property in favor of Seller ("Grant Deeds") and delivers the applicable portion of the total purchase price value pursuan to this Agreement (less applicable charges and adjustments) to Seller. The fbrm of the Grant Deeds which shall be executed and delivered is attached hereto as Exhibit " E Close of Fscrow shall be on a date specified by the parties, which shall be no later than November 27, 2002, except that (i) Buyer shall have five (5) days advance notice from Escrow Agent before it shall be required to deposit funds into Escrow, and (ii) the Close of Escrow may be extended, at no cost to Buyer, as a result of delays caused by any act or omission of Seller, or extended by mutual agreement of the parties in order for either party to comply with any remaining conditions precedent to close, or as otherwise specifically provided for in this Agreement, provided however, it shall not close later than December 30, 2002 without Seller's express written consent as Close of Escrow in calendar 2002 is a material clement in Seller's decision to sell on these terms and conditions. 2.42 Deliveries to Escrow. Each party shall timely deliver to Escrow the funds, documents and articles required to complete Close of Escrow under the terms of this Agreement by the closing date. Without limiting the generality of the foregoing, the parties shall deliver to Escrow the following fiords and documents: 2.4.3 Seller's Deliveries. Seller shall deliver or cause to be delivered to Escrow Agent: (a) The Grant Deed conveying the Barelmatm Property to Buyer, duly executed and acknowledged by each individual or entity comprising Seller, in recordable form plus additional monies, if any, required of Seller under this Agreement for proralions, expenses and adjustments and containing the following provision: "This deed is given in lieu of, and under the threat of, the exercise by Grantee of the power of eminent domain to acquire the herein described property for public purposes." (b) An affidavit in the fonn attached hereto as Exhibit "r", duly executed under penalty of'perjury by each of the individuals or entities comprising Seller, to the 3 r LJ effect that signatories are not a " foreign person" as required by Internal Revenue Code Section 1445: and (c) Any and all additional documents which may be necessary to transfer title to the Barelmann Property to Buyer as specified in this Agreement. 2.4.4 Buyer's Deliveries. Buyer shall deliver or cause to be delivered to Escrow Agent: (a) The Grant Deed conveying the City Property to Seller, duly executed and acknowledged by each individual or entity comprising Buyer, in recordable form and containing the following provision: "This deed is given as partial consideration to be paid by Grantor to Grantee for the acquisition of other property by Grantor for public purposes, in lieu of and under threat of condemnation." (b) Cash in the amount of the Fight IIundred Thousand dollars ($800,000), plus such additional sums as are required of Buyer under this Agreement for proration, expenses and adjustments, including, but not limited to, those same items as listed in Section 1.2 above, but with respect to the City Property. Such amounts shall be deposited by Buyer with Escrow Agent by wire transfer. (c) A duly executed Promissory Note secured by an inured First Deed of Trust if called for pursuant to Section 1.4 ol'this Agreement. 2.5 Completion of Documents. Escrow Agent is authorized to complete the documents deposited by the parties into Escrow, when appropriate and consistent with this Agreement. 2.6 Prorations, Escrow Fees and Costs. 2.6.1 Prorations. Real estate taxes and assessments related to both the Barelmann Property and the City Property, based upon the latest information available in the office of the taxing and/or assessing authority, shall be prorated in Escrow, as of the date of Close of F,serow. All prorations shall be made on the basis of a 30 day month and a 365 day year, unless the parties otherwise agree in writing. All taxes due and payable to the date of Close of Fscrow, irnol already paid, are to be paid directly to the Office of the San Diego County Tax Collector by the party so assessed. 2.6.2 Buyers' Payments. Buyer shall pay the following: (1) the San Diego County Documentary transfer tax related to the Barelmarm Property, if any, in the amount Escrow Agent determines to be required by law; (2) one half of Escrow Agent's escrow fee; (3) the cost of an A.L.T.A. Standard Coverage Title Policy related to the Barelmamr Property as described in Section 3.2 herein; and (4) other Buyer related charges and expenses, in accordance with the customary practices of Escrow Agent. .a 4 2.6.3 Seller's Payments. Seller shall pay the following: (1) the San Diego Country Documentary transfer tax related to the City Property, if any, in the amount Escrow Agent determines to be required by law; (2) one half of Escrow Agents escrow fee; (3) the cost of a A.L..T.A. Standard Coverage Title Policy as described in Section 3.2 herein; and (4) other Seller related charges and expenses, in accordance with the customary practices of Escrow Agent. 2.6.4 Parties Payments. Regarding the properties Buyer and Seller will convey pursuant to this Agreement, each party shall respectively pay all operating expenses for the same, if applicable, prior to the Close of Escrow, including, but not limited to, insurance, utilities, interest on encumbrances, taxes and maintenance costs. 2.6.5 Default. Notwithstanding; the foregoing, in the event of a default by Buyer or Seller under the terms of this Agreement, all cancellation and other escrow charges shall be paid by the defaulting party. 2.7 Existin * Encumbrances. Escrow Agent is authorized to secure beneficiary demands and requests for reconveyance for those monetary liens which are not "Permitted Exceptions" pursuant to Section 3.2. The Parties shall have the right to approve all demands and statements described in this Section, but approval shall not be unreasonably withheld or delayed. IS Distribution of Funds and Documents. At Close ol'Escrow, Escrow Agent shall perform the following: 2.9.1 Payment o1 Encumbrances. Pay the amount of those monetary liens, if any, which are not Permitted Exceptions to the obligees thereof, in accordance with the demands approved by the parties, utilizing; funds to which an individual party would be entitled or requiring said limds from an individual party. 2.9.2 Recordation of Documents. Submit to the County Recorder of San Diego County the Grunt llccds for the Barelmann Property and City Property and any other document to be recorded under the terms of this Agreement or by general usage, and after recordation, cause the County Recorder to mail the Grant llccds to the Buyer and Seller as appropriate, and any other document recorded pursuant hereto, to that person acquiring rights thereunder for whose benefit said document was recorded. 2.9.3 Non -recorded Documents. Deliver by United States mail (or hold for personal pickup, if requested): (1) the Title Policies to Seller and Buyer; and (2) each other non -recorded document received hereunder to the payee or person acquiring rights thereunder or for whose benefit said document was acquired. 2.9.4 Distribution of Funds. Deliver by United States mail (or as otherwise instructed by the receiving party): (1) to Seller, or order, the cash portion of the Purchase Price, adjusted firr charges, credits and debits provided for herein; and (2) to Buyer any excess funds delivered to escrow Agent by Buyer. ) y,. Q': ry Y 5 r ARTICLE 3 TITLE MATTERS 3.1 Preliminary Title Report. 3.1.1 Delivery to Buyer and Seller. Buyer has received a Preliminary Title Report Order No. 1283481-4 dated as of October 3, 2002, ("BPR") issued by First American Title Insurance Company ("Title Insurer") reflecting the status of title to the Barelmann Property. Seller has received a. Preliminary Title Report Order No. DIV-654560 (04) dated as of September 12, 2002 ("SPR") issued by Title Insurer reflecting the status of title to the City Property. 3.1.2 Approval of Condition of Title. Buyer hereby approves the condition of title to the Barelmatm Property, as reflected in the BPR, except for matters which may later be reported as exceptions to the BPR pursuant to Section 3.1.3, which exceptions Seller shall remove at or prior to Close of Escrow. Seller hereby approves the condition of title to the City Property, as reflected in the SPR, with the exception of item No. 10 therein in which Seller shall either accept or reject by November 21, 2002, and except for matters which may later be reported as exceptions to the SPR pursuant to Section 3.1.3, which exceptions Buyer shall remove at or prior to Close of Escrow. 3.1.3 Amendment of BPR and SPR. if either the BPR or the SPR is amended by the Title Insurer after either Buyer's approval or Seller's approval of the condition of title to incl ude any new exception ("New Exception"), then, if the owner is not able or willing to remove the New Exception, that party may elect, at any time prior to Close of Escrow, to either (i) waive any objection it may have to such New Exceptions and accept title subject to such New Exception; or (ii) tenninate this Agreement. 3.2 Title insurance. Escrow Agent shall cause the Title Insurer to have issued, or be committed to issue, as of the Closing Date, an A.L.T.A. Standard Coverage Title Policy ("Title Policy") insuring; (1) Buyer's title to the Barelmann Property in the amount of the total purchase price value, subject only to the following permitted exceptions: (a) the matters set forth in the BPR and approved by Buyer pursuant to Section 3.1; (b) any other matters approved in writing by Buyer; (c) matters excepted or excluded from coverage by the printed terms of the Title Policy's standard form; and (2) Seller's title to the City Property in the amount of the estimated value as identified herein, subject only to the following permitted exceptions permitted exceptions: (a) the matters set forth in the SPR and approved by Seller pursuant to Section 3.1; (b) any other matters approved in writing by Seller; (c) matters excepted or excluded from coverage by the printed terms of the Title Policy's standard form. 3.3 Extended Coverage Title Policy. Either party may elect to add endorsements, or upgrade to an A.L.T.A. Extended Coverage Title Policy, provided (i) the requesting party pays all additional costs, premiums and expenses and (ii) it does not delay Close of Fscrow. 6 9 • ARTICLE 4 CONDITIONS TO CLOSE OF ESCROW 4.1 Conditions to Close of Escrow firr Benefit of Boer. Close of Escrow shall be subject to satisfaction or waiver of each of the following; conditions precedent for the benefit of Buyer: (a) Commitment by CALTRANS to provide City with grant funds in the amount of Four Hundred Thousand dollars ($400,000) which Buyer intends to use towards the purchase of the Barelmann Property. (b) The Title Insurer's written agreement to issue, or issuance of', the Title Policy for the Barelmann Property described in Section 3.2, subject only to any permitted exceptions. (c) The continued accuracy of the representations and warranties of Seller set forth in Article 5. A CALTRANS review and approval of the (1) appraisal report; and (2) this Purchase and Sale Agreement and Joint Escrow instructions in its executed form. (e) Seller shall execute and deliver to Escrow Agent the IRS required affidavit attached as Exhibit "F". 4.2 Conditions to Close of Escrow for Benefit of Seller. Close of Escrow shall be subject to satisfaction or waiver of each of the following conditions precedent for the benefit of the Seller: (a) The Title Insurer's written agreement to issue, or issuance of, the Title Policy for the City Property described in Section 3.2, subject only to any permitted exceptions. (b) The continued accuracy of the representations and warranties of Buyer set forth in Article 5. 4.3 Waiver of Conditions. Any party may waive, in writing, any or all of the conditions specified for its respective benefit. Conditions which mutually benefit the parties may only he waived by mutual express written agreement of the parties. 4.4 Failure of Conditions- if any of the foregoing conditions is neither satisfied nor waived by Close of Escrow, any benefiting party may immediately terminate this Agreement and the Escrow by giving written notice of termination to Seller and Escrow Agent. Such termination shall not limit any other legal rights and remedies available to the terminating party if the failure of conditions is the result of the other party. VA • • ARTICLE 5 REPRESENTATIONS AND WARRANTIES For purposes ol'this Article 5, the parties agree, represent and warrant, as of the date of execution of this Agreement and Close of Escrow, the following: 5.1 Representations and Warranties. The parties shall indemnify, hold harmless and del.end the other party from and against any and all liens, claims, liabilities, losses, damages, costs, expenses, suits, or judgments for labor performed or materials furnished to or for said party, or lot injuries to persons or property damage, arising out of any accident or occurrence connected with said party. 5.2 Authority. The parties have full legal right, power and authority to execute and fully perform its obligations under this Agreement, without the need for any further action; and the persons executing this Agreement and other documents required hereunder on behalf of Seller or Buyer are the only persons required to execute such documents to legally effect the transactions contemplated hereby and are fully authorized to do so. 53 'Title Matters. Except as otherwise contemplated by this Agreement following the Effective Date of this Agreement, neither Seller nor Buyer shall create, or permit the creation of', any exceptions to title to the Barelmann Property or City Property respectively, without the other parly's prior written consent, which shall not be unreasonably withheld. 5.4 Claims and Litication. To the best of the respective parties' knowledge, there is no pending litigation, proceeding or governmental investigation relating to the properties they intend to convey pursuant to this Agreement, and neither party has any knowledge of any material basis liar any such claim, litigation proceeding or governmental investigation. 5.5 Governmental Regulations. Neither party has received any notice of violation of any applicable zoning regulation or ordinance or other law, order, ordinance, rule, regulation, code or requirement affecting or relating to the construction, use, or occupancy of the Property (collectively "Governmental Regulations"), nor any notice of violation of any covenant, condition or restriction affecting the property intended to be conveyed pursuant to this Agreement not previously disclosed in writing to the other party. 5.6 improv_ement Obligations. Neither party has made any commitment to any governmental or quasi -governmental entity, or to any other person or entity, which relates to any property intended to be conveyed pursuant to (his Agreement and imposes upon the other party or its successors or assigns, any obligation to pay or contribute property or money to construct, install or maintain any improvements on, off, or related to said properly. No such commitment shall be made by either party following the effective date of this Agreement without the other party's prior written consent. Additionally, neither party shall approve or make any improvements to the properties intended to be conveyed by this Agreement without the express written consent of the other party. ld 5.7 No New Easements. The parties warrant that they have not granted any easements, liens, rights of use and occupancy on the properties intended to be conveyed by this Agreement and shall not grant or reserve the same after the Effective Date of this Agreement, other than as disclosed on the BPR and SPR. 5.8 Material Facts. No representation or warranty made by either party contains any untrue statement of a material fact, or omits a material fact necessary to make such statements not misleading. 59 Survival of Representations. The representations provided in Article 5 shall be true as of Close of Escrow, delivery of the Grant Deeds to either parry, and thereafter. 5.10 Hazardous Materials. Neither party has actual knowledge, except as otherwise disclosed to the other party, in writing or in this Agreement, of the existence or prior existence on the property it intends to convey pursuant to this Agreement of any hazardous materials as defined by local, state and federal law ("hazardous materials"). To the best of either parties' knowledge, no summons, citation, directive, order or other communication has been issued arising out of or relating to the presence of any hazardous materials on said property. 5.11 In Lieu of Condemnation. This Agreement, and the parties negotiations are based on the fact that City is acquiring the Bareltnarm Property for public purposes, and if not conveyed tinder this Agreement, could be subject to condemnation by the City in accordance with applicable law. 5.12 Disclaimer of Certain_ Representations and Warranties. Except as otherwise expressly provided in Article 5, both parties disclaim the making of any representations or warranties, express or implied, regarding the property it intends to convey pursuant to this Agreement or matters affecting the same, including, without limitation, the physical condition of the same, title to or boundaries of the same, pest control matters, soil condition, hazardous waste, toxic substance of other environmental matters, compliance with building, health, safety, land use and zoning laws, regulations and orders, structural and other engineering characteristics, budgets and financial projections for the operation of the same, and all other information pertaining to the same. 5.13 "As is" Sale. Except as otherwise expressly provided in Article 5, each party hereby acknowledge and agree that prior to the Close of Escrow, it will have the opportunity to make such investigations and inspections of the Property it intends to obtain pursuant to this Agreement. Each party further specifically acknowledges and agrees that (i) except as otherwise provided in this Agreement, the other party does not make any representation or warranties of any kind whatsoever, either express or implied, with respect to the property it intends to convey pursuant to this Agreement (Or any related matters), and (ii) said property is being sold in an "As Is" condition as of the Close of Escrow and the party obtaining title to said property assumes the risk that adverse physical conditions may not have been revealed by its investigations. Each party acknowledges and agrees that it is entering into this Agreement, and shall consummate the transaction contemplated hereby, upon the basis of its own investigations and inspections of the property it intends to obtain pursuant to this 9 Agreement, and records relating thereto, and shall bear and assume the risk that its investigations and inspections of the same, and records relating thereto, may not have revealed adverse or undesirable physical conditions (including, without limitation, subsurface conditions Or conditions related to any Hazardous Substances) or other matter allecting the value, use, or utility of the same, or any portion or component thereof. Each party further acknowledges and agrees that it explicitly took into account such risk of unknown and/or undiscovered adverse conditions in its decision to enter into this Agreement on the terms and conditions Set firth herein. 5.14 Mutual General Release. Except as otherwise expressly provided in Article 5, each party agrees to release the other party, its elected officials (if applicable), directors, officers, employees, and agents from and against any and all liability, including without limitation (a) all foreseeable and unforeseeable consequential damages, directly or indirectly arising from the use, generation, storage, or disposal of hazardous materials by the other party, and (b) the cost of any necessary repair, cleanup, or detoxitication and the preparation of any closure or other required plans, to the full extent that such liability is attributable, directly or indirectly, to the presence or use, generation, storage release threatened release, or disposal of hazardous materials by any person on the property it intends to convey pursuant to this Agreement before the close of escrow. 5.15 Waiver of' Civil Code Section 1542. The parties hereto expressly waive and relinquish any rights or benefits available to them under the provisions of Section 1542 of the Civil Code o l' Cali firma, which provides: "A GENFRAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT TIIE TIME OF EXECUTING THE, RELEASE, WHICH IF KNOWN BY HIM MUST IIAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH DEBTOR." ARTICLE 6 PROPERTY RLVIEW, INSPECTION AND POSSESSION 6.1 Inspection and Due, Diligence Period. For purposes of this Agreement, the due diligence period shall commence as of the Opening of Escrow and shall continue to November 21, 2002 ("Due Diligence Period"). During the Due Diligence Period: (a) Either party shall have the opportunity to inspect the property it intends to obtain pursuant to this Agreement, examine the other party's records regarding the same, and review any and all items and information as may be necessary in order to determine whether the same is appropriate for said party's purposes; (b) Either party may enter upon the property it intends to obtain pursuant to this Agreement pursuant to a "Right of Entry Agreement" acceptable to the parties, and 10 0 0 conduct such reasonable inspections, reviews, studies, examinations and tests, including but not limited to, testing related to soils, compaction or hazardous substances as dectned necessary or desirable in order to investigate the physical condition of the same, at that party's sole expense, after prior written notice to the other party. (c) The party administering or causing said testing as noted above, shall indemnify, defend (with legal counsel reasonably satisfactory to the other party), and hold the other parry harmless from any claims liability, loss, cost, action, damage, expense or fee which the other party may ineur by reason of any testing or entry onto the said property. This indemnity shall survive the termination of this Agreement and Close of Escrow. Notwithstanding the foregoing, the party administering or causing said test as noted above sball not be required to indemnify, defend or hold the other party harmless if the indemnification arises from the other party's willful acts or omissions during said testing or entry. (d) F,ach party, at any time prior to the expiration of the Due Diligence Period, may deliver written notice to the other party and Escrow Agent in the form attached as Exhibit "G" ("Due Diligence Notice") that it is satisfied with the results of its inspection of the property it intends to obtain pursuant to this Agreement. Upon delivery of the Due Diligence Notice the party delivering the same shall be committed to the terms of this Agreement. If either party fails to give the Due Diligence Notice to the other party and Escrow Agent prior to the expiration of the Due Diligence Period, then the following shall occur on the next business day following the expiration of the Due Diligence Period upon the written request of either party: (i) Escrow Agent shall immediately cause the Escrow to be terminated; (ii) all monies and any interest thereon, minus any escrow cancellation fees, shall be refunded as appropriate; and (iii) the parties shall have no further rights or obligations to each other under this Agreement with the exception of subparagraph (c) above. ARTICLE 7 GENERAL PRQVISTQNS 7.1 Assienment. Neither Seller nor Buyer shall have the right to assign their respective rights or obligations under this Agreement without the express prior written consent of the other party. Notwithstanding the loregoing, Seller shall have the right to designate vesting of title at Close of Escrow for the City Property, 7.2 Brokers and hinders. Each party represents and warrants to the other that: (a) it has not engaged or dealt with any broker or finder (collectively, "Broker") in connection with this transaction, (b) it has not acted in a way that would entitle any Broker to any commission, and (e) it shall defend, indemnify and hold harmless the other party from all claims, losses, damages, costs and expenses, including reasonable attorneys' fees, arising 11 0 • from or related to any assertion by any Broker contrary to the foregoing clauses (a) and (b) where the same is based upon the acts or alleged acts of the indemni Tying party. 7.3 Contingency. This Agreement shall become fully effective as to the Buyer only following its approval by the City Council which shall occur on or before November 20, 2002- if not approved, City shall notify Seller and Escrow Agent in writing and such notice shall be treated the same as a "Due Diligence Notice" of disapproval under Article 6. 7.4 Entire Agreement. This Agreement together with all exhibits attached hereto and other agreements expressly referred to herein, constitutes the entire agreement between the parties with respect to the subject matter contained herein. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are suspended. 7.5 Exhibits. All exhibits referred to herein are attached hereto and incorporated herein by reference. 7.6 Further Assurances. The parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions of the parties. 7.7 Governing Law. This Agreement shall be governed, interpreted, construed and enforced in accordance with the laws of the State of California. 7.8 Headings. The captions and section headings used in this Agreement are inserted fcrr convenience of reference and are not intended to define, limit or affect the construction or interpretation of any term or provision hereof. 7.9 Modification and Waiver. No modification, waiver, amendment or discharge of this Agreement shall be valid unless the same is in writing and signed by both parties. 7.10 No Other Inducement. The making, execution and delivery of this Agreement by the parties hereto has not been induced by any representations, statements, warranties or agreements other than those expressed herein. 7.11 Notices. Notice to either party shall be in writing and either personally delivered or sent by certified mail, postage prepaid, return receipt requested, addressed to the party to be notified at the address specified herein including delivery by commercial messenger or courier service. Any such notice shall be deemed received on the date of personal delivery to the party (or such party's authorized representative) or three (3) business days after deposit in the U.S. mail, whichever occurs first. 12 E �J Buyer's Address for Notice: City Manager City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024-3633 Seller's Address for Notice: Robert and Margaret Barelmann 1967 N. Coast Highway 101 Encinitas, CA 92024 With a Copy to: Glenn Sabine, Esq. City Attorney 505 South Vulcan Avenue Encinitas, CA 92024-3633 With a Copy to: Ronald W. Rouse, Esq. Luce, Forward 11988 Li Camino Real, Suite 200 San Diego, CA 92130 Either party may change its address for notice by delivering written notice to the other party as provided in this section. 7.12 Severability- if arty term, provision, covenant, or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 7.13 Successors. Subject to the limitations on assignment set forth in Section 7.1, all terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective heirs, legal representatives, successors, and assigns. 7.14 Time of the Essence. Time is of the essence in the performance of each provision of this Agreement. 7.15 Time Period Computation. All periods of time referred to in this Agreement shall include all calendar days, except that if the date or last date to perform any act, or give any notice or approval, shall fall on a Saturday, Sunday, or state or national holiday, such act, notice or approval may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. 7,16 Waiver. The waiver by one party of the performance of any term, provision, covenant or condition shall not invalidate this Agreement, nor shall it he considered as a waiver by such party of any other term, provision, covenant or condition. Delay by any party in pursuing any remedy or in insisting upon full performance for any breach or failure of any term, provision, covenant or condition shall not prevent such party from later pursuing remedies or insisting upon frill performance for the same or any similar breach or failure. 7,17 Representation by Independent Counsel. Each party has had ample opportunity to consult with independent counsel before executing this Agreement and has executed this Agreement without fraud, duress or undue influence of any kind. 1, .. 13 i 7.18 Interpretation. The provisions of this Agreement shall be liberally construed to effectuate its purpose. The language of all parts of this Agreement shall be construed simply according to its plain meaning, and not for or against any party, as each party has participated in the drafting of this document and had the opportunity to have its independent counsel review and comment on the draft. BUYER: SELLER CITY OF ENCINITAS, a California municipal corporation Attest: Deborah Cervone, City Clerk Apprnv as to form: Glenn Sabine, City Attorney d �y Robert H. Barelmarm Margargf L Barelmarm 14 EXHIBIT LIST A. LEGAL DESCRIPTION OF BARLLMANN PROPERTY B. LEGAL, DESCRIPTION OF CITY PROPERTY C. PROMISSORY NOTF,/ DEED OF TRUST' D. CONSENT OF ESCROW AGENT F.. FORM OF GRANT DEEDS F. SELLER'S IRS AFFIDAVIT G. DUE DILIGENCE. NOTICE 15 • rI EXHIBIT "A" LEGAL DESCRIPTION OF BARELMANN PROPERTY [Subject to Review of Preliminary Title Report] THE LAND REFERRED TO IIEREIN 1S Sl'l UA'IED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THE LASTHALF OF LOT 7 OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF C'ALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, EXCEPTING THEREFROM THAT PORTION LYING WITHIN ROAD SURVEY NO.1796 TAKEN BY THE COT.JNTY OF SAN DIEGO BY FINAL ORDER OF CONDEMNATION RECORDED JANUARY 3, 1968 AS FILE NO.1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEET WIDE, 42 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED APRIL. 6, 1965 AS FILE NO. 60313 OF OFFICIAL, RECORDS IN THE OFFICE OF THE, COUNTY RECORDER IN SAID SAN DIEGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2INCH PIPE TAGGED "DIV.IIWYS." BEING AT COORDINATES Y-335,887.14 FEET AND X-1, 680,010,03 FEET; TIIENC.E ALONG BLARINGS AND DISTANCES BASED ON THE CALIFORNIA COORDINATE SYSTEM GRID ZONE VI AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTERLY BOUNDARY LINE, AND THE PROLONGATION THEREOF, 90.00 FEET TO TLIE TRUE POINT OF BEGINNING, SAID POINT IIAVING GRID COORDINATES N-335,808.173 AND E-1,680,053.206 OF SAID GRID ZONE VI; THENCE NORTH 61 °19'54" EAST, 24.37 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3034,25", A DISTANCE OF 302.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 57°45'29" EAST, 405,52 FEET TO THE 1ECTINNING OF A TANGENT CURVE TO THE RIGHT IIAVING A RADIUS OF 1400 FEET; TIIENC:E EASTERLY ALONG; SAID CURVE TIIROUGII A CENTRAL ANGLE OF 15013'2.5", A DISTANCE OF 371.98 FEET; THENCE TANGENT TO SAID CURVE NORTII 72058'54" EAST, 418.15 FEETTO THE. BEGINNING OF A TANGENT CURVE TO TIIE RIGHT HAVING A RADIUS OF 1400 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CEN 1'RAL ANGLE OF 18011'59", A DISTANCE OF 444.70 FEET; THENCE. TANGENT TO SAID CURVE SOUTH 88049'07" EAST, 1443.17 FEET TO THE BEGINNING OF A TANGENT CURVE TO TIIE. LEFT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE TIIROUGII A CENTRAL ANGLE OF 12035'05", A DISTANCE OF 307.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 78035'48" EAST. 870,32 FEET I'O THE POINT OF BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1700 FEET-, SAID POINT BEING ENGINEER'S STATION 89+61,70 B.C. IN TTIE CENTER LINE OF ROAD SURVEY NO.1796-65 ON FILE 1N THE OFFICE OF THE COUNTY SURVEYOR i' 16 C 7 IN SAID SAN DIEGO COUNTY AS SHOWN ON SHEET 4 OF SAID SURVEY; TIIENCE EASTERLY AND SOTJTHF,ASTERLY ALONG SAID CURVE THROUGH A CENTRAL. ANGLE OF 40022'26", A DISTANCE OF 1197.92 FEET; THENCETANGENT TO SAID CURVE SOUTH 61001'46," EAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO TIIE LEFT HAVING A RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114 1-57.30 B.C. IN THE CENTER LINE. OF SAID ROAD SURVEY NO.1796-65; TIIENCE SOUTIIEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34011'14", A DISTANCE OF 895.02 FEET; THENCE TANGENT TO SAID CURVE NORTH 84047'00" EAST, 689.81 FEET TO A POINT ON THE CENTER LINE. OF ROAD SURVEY NO-682, A PLAT OF WHICH IS ON FILE IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52°02'49" EAST, 5.58.81 FEET 1 ROM'1'HE EAS"1'ERLY T'ERMINIJS OF THE, COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAID CENTER LINE, POINT ALSO HAVING GRID COORDINATES; N-335,770.646 AND E- 1,688,300,279 OF ZONE VI. 17 EXHIBIT "B" LEGAL DESCRIPTION OF CITY PROPERTY [Subject to Review of Preliminary Title Report] ALL TIIAT PORTION OF THE SOUTHEAST QUARTER OF THE. SOUTIEAST QUARTER OF SECTION 4, TOWNSIIIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT" THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON TIIE WESTERLY LINE OF THE SOUTHEAST QUARTER OF TIIE SOUTIEAST QUARTER WHICH BEARS NORTH 01-01'53" WEST 279.18 FEET TIIEREALONG FROM TIIE SOUTHWEST CORNER THEREOF; THENCE LEAVING SAID WESTERLY LINE NORTH 88058'07" EAST 15.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, NORTH 88°58'07" FAST 125.69 FEET TO AN INTERSECTION WITII TIIE WESTERLY LINE OF INTERSTATE ROUTE 5 (ROUTE 11-SD-5); TIIENCE NORTHERLY ALONG SAID WESTERLY LINE., NORTH 02052'44" WEST 352.13 FEET; TIIENCE NORTII 09033'04" WEST 3.50.89 FEET: THENCE NORTH 25004'30' WEST 153.04 FEET; TIIENCE LEAVING SAID WESTERLY LINE.., SOUTHERLY, SOUTH 01001'53" EAST 838.73 FEET TO THE TRUE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS 77,253.31 SQUARE FEET (1,7735 ACRES), MORE OR LESS. , 18 C_ E EXHIBIT "C" PROMISSORY NOTE SECURED BY DEED OF TRUST $350,000 Encinitas, California For value received, on or before the earlier of (a) the sale by the City of Encinitas of its Camino Del Rancho parcel (APN 264-154-10) or (b) eleven months after the close of escrow date, pursuant to the terms of that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of J[''r, r�rr- .L , 2002 between the undersigned and Robert H. Barelmamr and Margaret I,. Barelmann ("PURCIIASE AGREEMENT"), the undersigned promises to pay to the order of Robert H. Barelmann and Margaret L. Barelmann or assignee ("Holder"), the sum of Three Hundred and Fifty Thousand Dollars ($350,000) in accordance with the following payment schedule and conditions: Should default be made in payment of principal when due, the unpaid principal shall bear simple interest at the rate of ten percent (10%) per annum until paid. 2. Principal shall be payable in lawful money of the United States. If action or foreclosure be instituted on this note, the undersigned promises to pay such sum as authorized by law liar trustees fees, attorney's fees and costs of foreclosure, including court costs. This note is secured by and sul?ject to that certain Deed of Trust on the Barelmann Property (as defined in the "Purchase Agreement") executed concurrently herewith. 4. The Purchase Agreement and this note are made and given in lieu of condemnation of the Barclmann Property for public purposes by the undersigned in accordance with applicable law. 5. The Deed of Trust contains the following due -on -sale clause: From Title Company Printed Form CITY OF ENCINITAS By rry E. Millcr, Ctfy Mana r [Deed of Trust to be inserted] j; 'r 19 EXHIBIT "D" CONSENT OF ESCROW HOLDER The undersigned Escrow Holder hereby agrees to: (i) be Escrow Holder under the foregoing Purchase Agreement; (ii) accept and be bound by the Purchase Agreement in the performance of its duties as Escrow Holder; and (iii) make all filings required under Section 6045 of the Internal Revenue Code of 1986,.as amended; provided, however, the undersigned shall have no obligation, liability or responsibility under this Consent or otherwise, unless and until said Purchase Agreement, frilly signed by the parties, has been delivered to the undersigned. The undersigned shall not be bound by an amendment to the Purchase Agreement unless and until such amendment is signed by the duly authorized representatives of Seller and Buyer and accepted by the undersigned in writing. Dated: Ik l\ �C' Z Escrow, Inc. By Escrow Officer 20 EXIIIBIT "E" FORM OF GRANT DEEDS [To be Provided by Fidelity National Title During Escrow Period EXHIBIT "G" DUE DILIGENCE NoT10E, The undersigned is satisfied with the results of its inspection of the property that it intends to obtain pursuant to that certain Purchase and Sale Agreement and Joint Escrow instructions dated as of 2002, and intends to move forward in closing the transaction related to the saine. By Title By Title 22 Date EXHIBIT "F" AFFIDAVIT Robert H. Barelmann and Margaret L. Barelmann are the Sellers of that certain real property located in Encinitas, California (APN 216-110-42) (the Property), which Property is being transferred though Escrow. No. y3 cc•478•`1'5 at Fidelity National Title (Escrow Agent). c i�c,ai;-ram Section 1445 of the Internal Revenue Code of 1.986, as amended, provides that a Transferee of a U.S. real property interest must withboid tax if the Transferor is a foreign person. To inform the Buyer/Transferee that withholding of tax will not be required in connection with the disposition of the Property, the undersigned hereby declares the following on behalf ol'the Seller/Transferor: I. Seller is not a foreign corporation, foreign partnership, IbTeign trust, or foreign estate, as those terms are defined in the Internal Revenue Code and Income Tax Regulations. 2. Seller's U.S. Employer Identification Number is: 'lax Ill/Social Security No. - Ly - 7C: 3. Seller's address is It is understood that this certilicate may he disclosed to the Internal Revenue Service and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury we declare that we have examined the foregoing certification and, to the best of our knowledge and belief. it is true, correct, and complete, and we further declare that we have the authority to sign this document on behalf of the Seller. Dated: 2002 Seller: Robert II. Barelmann and Margaret L. Barelmann Its: By: , Its: 23 PROMISSORY NOTE SECURED BY DEED OF TRUST Escrow No. 4306478-TS $350,000.00 Encinitas, California November 5, 2002 For value received, on or before the earlier of (a) the sale by the City of Encinitas of its Camino Del Rancho parcel (APN 264-154-10) or (b) eleven months after the close of escrow date, pursuant to the terms of that certain Purchase and Sale Agreement and Joint Escrow Instructions dated November 1, 2002 between the undersigned and Robert H. Barelmann and Margaret L- Barelmann ("PURCHASE AGREEMENT"), the undersigned promises to pay to the order of Robert H. Barelmann and Margaret L. Barelmann, or assignee ("HOLDER"), at place designated by beneficiary, the sum of THREE HUNDRED FIFTY THOUSAND AND 001100 DOLLARS, in accordance with the following payment schedule and conditions: Should default be made in payment of principal when due, the unpaid principal shall bear simple interest at the rate of ten percent (10%) per annum until paid. Principal shall be payable in lawful money of the United States. If action or foreclosure be instituted on this note, the undersigned promises to pay such sum as authorized by law for trustees fees, attorney's fees and costs of foreclosure, including court costs. This mote is secured by and subject to that certain Deed of Trust on the Barelmann Property (as defined in the "Purchase Agreement") executed concurrently herewith. The Purchase Agreement and this note are made and given in lieu of condemnation of the Barelmann Property for public purposes by the undersigned in accordance with applicable law. Due On Sale: Anything herein to the contrary notwithstanding, in the event of a voluntary sale, transfer or conveyance of all or any portion of the property described herein, any indebtedness or obligation hereunder, shall at the option of the holder hereof, immediately become due and payable. Balloon Payment: This note is subject to Section 2966 of the Civil Code, which provides that the holder of this note shall give writte notice to the Trustor, or his successor in interest, of the prescribed information at least 90 and not more tha 15 day before any balloon payment is due. C' ncin' as, a California un Eipal corporation FD-230 (Ray. 12-20-95) INSTALLMENT NOTE -INTEREST INCLUDED ❑O NOT DESTROY THIS NOTE: When paid, this note and the Deed of Trust must be surrendered to Trustee for cancellation, before reconveyance will be made. RECORDING REQUESTED BY: . 0 When Recorded City of Encinitas 505 S. Vulcan Mail Document To: Encinitas, CA 92024 SUBSTITUTION OF TRUSTEE AND FULL RECONVEYANCE WHEREAS, City of Encinitas, a California Municipal Corporation was the original Trustor, Fidelity National Title Company, a California Corporation the original Trustee, and Robert H. Barelmann and Margaret L. Barelman, husband and wife the Beneficiary, under that certain Deed of Trust dated November 5, 2002 and recorded as Instrument no. 2002-1070875 on November 26, 2002 in book , page , Official Records of the county of San Diego, State of California, and WHEREAS, the undersigned Beneficiary desires to substitute a new Trustee under said Deed of Trust in place and stead of Fidelity National Title Company, a California Corporation now therefore, the undersigned hereby substitutes Robert H. Barelmann and Margaret L. Barelmann as Trustee under said Deed of Trust and Robert H. Barelmann and Margaret L. Barelmann as the substituted Trustee does hereby reconvey, without warranty, to the person or persons legally entitled thereto, the Estate now held thereunder. DATED: January 29, 2003 STATE OF CALIFORNIA Co Y OF San Die o before me, personally appeared Robert H. Barelmann Margaret L. Barelmann personally known to me (or proved to me on 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(ies), 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 ffici se Signature Robert H, Barelmann Beneficiary *MargaIrL.: Barelmann Beneficiary R bert H. Barelmann Su hs t i tu t �ed Trustee Marga It L. Barelmann Substituted Trustee ROBERT LUIS BONHAM N Comm. 01316829 r^ NOTARY PONLIC• CALIFORNIA N Svn 1f190v Canly r3 My Comm. Ewvtrn 4,15, 2008 F❑-236 (Rev 3fa4) SUBSTITUTION OF TRUST & FULL RECONVEYANCE • ,EXHIBIT "A" THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: TIIE EAST HALF OF LOT 7 OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THAT PORTION LYING WITHIN ROAD SURVEY NO.1796 TAKEN BY THE COUNTY OF SAN DIEGO BY FINAL ORDER OF CONDEMNATION RECORDED JANUA.RY 3, 1968 AS FILE NO.1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEET WIDE, 42 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED APRIL 6, 1965 AS FILE NO. 60313 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER IN SAID SAN DIEGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2 INCH PIPE TAGGED "DIV.HWYS." BEING AT COORDINATES Y-335,887.14 FEET AND X-1, 680,010.03FEET; THENCE ALONG BEARINGS AND DISTANCES BASED ON TIIE CALIFORNIA COORDINATE SYSTEM GRID ZONE VI AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTERLY BOUNDARY LINE AND THE PROLONGATION THEREOF, 90.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT HAVING GRID COORDINATES N-335,808.173 AND E-I,680,053.206 OF SAID GRID ZONE VI; THENCE NORTH 61°19'54" EAST, 24.37 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3034'25",. A DISTANCE OF 302.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 57°45'29" EAST, 405.52 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIG14T HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15013'25", A DISTANCE OF 371.98 FEET; THENCE TANGENT TO SAID CURVE NORTH 72°58'54" EAST, 418.15 FEET TO THE BEGINNING OF A TANGENT CURVE TO TIIE RIGHT HAVING A RADIUS OF 1400 FEET; THENCE - NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1gal 1'S9", A DISTANCE OF 444.70 FEET; THENCE TANGENT TO SAID CURVE SOUTH 88049'07" EAST, 1443.17 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12035'05", A DISTANCE OF 307.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 78035'48" EAST, 870.32 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1700 FEET; SAID POINT BEING ENGINEER'S STATION 89+61.70 B.C. IN THE CENTER LINE OF ROAD SURVEY NO.1796-65 ON FILE IN THE OFFICE OF TIIE COUNTY SURVEYOR IN SAID SAN DIEGO COUNO AS SHOWN ON SHEET 4 OF SAIA&MVEY; TIIENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 40022'26", A DISTANCE OF 1197.92 FEET; TI-IENCE TANGENT'CO SAID CURVE SOUTH 61 °OI'46," FAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114h57.30 S.C. IN THE CENTER LINE OF SAID ROAD SURVEY NO.1796-65; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34011'14", A DISTANCE OF 895.02 FEET; THENCE TANGENT TO SAID CURVE NORTH 84047'00" EAST, 689.81 FEET TO A POINT ON THE CENTER LINE OF ROAD SURVEY NO.682, A PLAT OF WHICI3 IS ON FILE IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52002'49" EAST, 558.31 FEET FROM THE EASTERLY TERMINUS OF THE COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAID CENTER LINE POINT ALSO HAVING GRID COORDINATES; N-335,770.646 AND E 1,688,300.279 OF ZONE VI. harm No. 105e.92 (10/17/92) AALTA Loan Policy Form 1 POLICY OF TITLE INSURANCE r First American Title, Insurance Cc)rnpajrly SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of pate of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land; 5. The invalidity or unenforceability of the lien of the insured mortgage upon the title; 6. The priority of any lien or encumbrance over the lien of the insured mortgage; 7. Lack of priority of the lien of the insured mortgage over any statutory lien for services, labor or material: (a) arising from an improvement or work related to the land which is contracted for or commenced prior to Date of Policy; or (b) arising from an improvement or work related to the land which is contracted for or commenced subsequent to Date of Policy and which is financed in whole or in part by proceeds of the indebtedness secured by the Insured mortgage which at Date of Policy the insured has advanced or is obligated to advance; 8. Any assessments for street improvements under construction or completed at Date of Policy which now have gained or hereafter may gain priority over the insured mortgage; or 9. The invalidity or unenforceability of any assignment of the insured mortgage, provided the assignment Is shown in Schedule A, or the failure of the assignment shown in Schedule A to vest title to the insured mortgage In the named insured assignee free and clear of all liens. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title or the lien of the Insured mortgage, as insured, but only to the extent provided in the Conditions and Stipulations. .first Arxmer°ican Title Insurance Company I it r>.r � � rurc:aun':v'r CW ' F� k '� �0''@� M * Ie N �` i0 N" 'a � EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (if) the character, dimensions or location of any improvement now or hereafter erected on the land, (III) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part, or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extend that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant, (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material or the extent 1. DEFINITIONS OF TERMS. The fpllnwing lerrn5 when LMIJ in III, Jill icy Inxan. (a) 'insured.. the insured named in Schedule A. The term "insured" also includes. (i) Inc uwnur of HIM indeniedless sncumd by the msurrn mnrlial and sarh sucrmdor in nwfbmhip el Ihr indunledne55 uxce{t H successor who is all obligor hider Ills provisions of Section 12(c) of Ihmu Colliffialls and Slipulatiofe (mscivillg, Imwcuun, all lights and deleflses as to any successor that the Company would have had against arry predecessor InsLlred, unless the successor acquired the indeblednes5 as a purchaser for value without knowledge of the asserted ifil lien. enctfmbranee, allvvr5e diem or piher matter im;urxd agaiml by tills on icy d5 affecting Iille In IhF eylale of interest ill Ibe IHnd): III) any governmental agency or governmental inylrunrenblity which :s an insurer or guarantor under an insurance contract or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgageof any {kart tllefeer WI1f.IlIDI boated as in insured herein or list', (III) the pidHSignaled insec'liun 7(Ht llf these Cuntlilinns Hrnnl Shpulations (b) "insured claimani an insured claiming loss or damage. (c) "knowledge' of "known' actual knowledge, not constructive knowledge or notice which may be imputed to an insurer by reason of the pulblic records as defined in this policy or any other records which impart Cp rt2tictive noire or matters afflecting the land. (d) "land". the land described or referred to in Schedule A, and improvements affixed thereto which by law constitute real properly. TIIF Aeon "landdoes not include any prinparty bHynnd IIIH lions of IIIF HIHA desnriheu ur refxned In :ri Schedule A, nor any riglt, iIIH, fill1rosi, esidle of Famrnenl III HhullirlU 5lreeh.;, mml5, HvunuaH HIlkilts IHncsways of waterways. but nothing herein 5hall modify Or limit IIIe BxlFif to which a nigh; of access to and from the land n insured by this poling. (a) "loortgago'mortgage, deed of trust, trust deed, or other sccbl'Ity instrument. (1) "public, rxcnnls malts FAHbliShcd undm stale slatuhns at nalH of Policy Inn the purpamt of inyxirliny fnfstmelivll 11101 Ifallun; ml,liny In nlal pmpfuly In pmelldems in value .und witnuul knowledge. Willi Rspeel In :inctiun 1(a)(iv) of file Lxflusion5 l roll Coverage, "public lecnms' .;ball also laCludn nnvifunmengl protection liens fled In the Iecords of the clerk of the Uniled States d,sll'Iet court for the district In which Inc lard is located. (g) "unmdlkulabilily of Ian: lillu": all alleged of apparent plattef alluctillg Inc lido to the land, fill excluded or CHCoplod III coverage, which would online a puncnaser of the estate of Interest described in Schedule A or TO Insured mortgage to be released your the obligation to purchase by virtue of a contractual condition requiring the delivery of markelable title. insurance is afforded herein as to assessments for street improve- ments under construction or completed at Date of Policy); or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage. 4. Unenforceability, of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the land is situated. 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. 7. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on: (i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or (III) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS nI dnorabin in nslal lish tin, flue to me estate or Interest or the lien of the insiaed nmrlga9x, Hs in:almd. II Ills Cnnpll is Ineji lifY:n by Ihn tailufH of the im;med In famish Ihr, rHlpliflnl rooperxlimi the Congrany'e nl,ligHlimis In Ill: imam l undm Ihu policy All lunillui mcludiny any 11HIAily of nhliuHhon'o dchmd, pm:iucl c or Mlifillue ally liligHlinn, will, regent !o IhH nldllaf In iialhm; frquimig sucll foulnnalinn. 5. PROOF OF LASS OR DAMAGE. Inadditinn (nand Haler file nnticxe raquirml indFr Section aof Iheee Conditions and SlipulHlinm hove Inn:n provided the Corncobs, a prowl nl loss or damage Sighed and Swell to by the insured clallmanl shall be tmnlshed to the Company wdhin 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss of damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calrulaliflg thn, amnuN Mitre loss nr namapc. Marc Company Is pioudrnd by fill: jai hoc of Inn: iu9uled claimant to provide the requilnd proof of loss bI denmgr., Ihu Cumpxny's' ellligalinns to Me insured undor Ills policy 0,111 poll including any liability or obligation to defend, prosecuteof continue any litigation, with regard to the platter or matters requiring such proof of loss or damage. In addition, the in;:pred claimant may reasonably be miliired to :iitimil Ir1 examindhon Iincler flail try ally authorized rxpraVlIIIHI v0 of the Cnnlpany and rhail prudum; lot uxal naliun, inSpccliun and copying, at such masoflable limes and places as may be designated by any authorized representative of the Company, all retards, books, ledgers, checks, correspondence and memoranda. whether bearing a bate before or after Date of Policy, which reasonably pertain to the loss or damageruhher, if requested by any authorized representative of the Company, the insured elmnlaly snall grant Its permisslon, :n writing, for any authorized represci lali40 of line Company to example, Inspect and copy all Iecords, books, ledgers, checks, correspondence and memoranda In Inc custody or control of a elm Salty, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant pmvided to the Company pursuant to this Section shall not be disclosed to others unless, In the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reazoni neres5ary, information from third parhe5 as required in this paragraph, wiless pri ihiAPd by law or onverrnnxntal regulation .shall IHoninHlH Holy liHbilily (it the Cm..III under a11'' nlicy d5 lu IIIHI clxinl. ' FITIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim tinder IhiS policy, the Company Shall have the 9. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY. la) All payments under this policy, except payments rnHIIH Inn costs. attorneys' fees and expensesshall reulrlc, the Hnnpllfll of the insurance pro panto. However, any payments made prior to Ila amuivIiuo of title to ;he estate or interest as provided in SHIIlhlfl 2(a) nl Ihose Conditions and Stipulations shall not reflime Ihn lafto ViF Hrlleudl of file imuranre affnrdxtl under this policy Hxcupl In the extent fill Ina payments mdidet! IIm din ul [no induulodness soclued by the losured mortgage. (h) Payment in part by any pmsnn al Ilse pfilleipel of me indehlFdnessm any Ohm ohligatiun secured by the Insured mortgage, III any volmilary padiHI 5atisladinll ur release of the Insured mortgage. to the CxtfAl of the paymebl, satisfaction or release, shall reduce the amount of insurance pro tang. ine amount of insurance may thereafter bH illcrHased by ercming interest and Advaneos made to protect the lien of the Insured mortgage and secured fiscally, with illlxrrA pioneer. provided in no event shall the amount of insmenpH ha grxalar Plan Ills amount of insurance Stated in Schedule A. (c) Payment in full by any person or the voluntary 5atisfactinn or release of the insured mortgage shall terminate al I IiHbilily of Ira Cnngrefny Reent 95 provided in Section ?(a) of these Conditions end Stipulalions. 10. LIABILITY NONCUMULATIVE. If the insured drquirxs title In [he oslnle or ifltee5l in satisfaction of fill IfldRbIHdfIH5% SH( ARd by Ihr: HISS ed mortgage, or any pall lherepf, it is expm551y undensgad that the amount of Insurance under this policy shall de reduced by any amount tie Company may pay under any policy insuring a mortgagee which exception Is taken in Schedule B or to which the III Ilan agnean. asslf nI taken Subject. or which is hereafter Hxxl'atxd by an insured and which is d charge al lien on the estate or irlllnesl descrihxt ur retxnxd In ill Schedule A, and the amount so paid rllall be lia,ir H pHyri Imdef this policy. 11. PAYMENT OF LOSS. (a) No payment Shall be made without producing this policy lot endorsement of the payment tin IHys his policy Ira% bean lull or destroyed, in which case proof of loss or destruction .;ball lie turrinhed to the mlisfantinn of the Cnnlpany. (b) When liability and the extent of loss or darmagH tlHs hxall definitely fixed in accordance with these Comitiuns and Stiplllabolls, the, loss or damage shall be payable within 3O days IherxafIRr. 40 SUBNUUATION UPON PAYMENT OR SETTLEMENT. (a) The Compaays Right of Suhro9aliff Whenever and Company Shall have salted and paid a claim under triC fI All rinM of ."iihrnfI:1 ion 00 vest Ill the rmif InaffertPil r IP J; 114 (a) After Acquisition of Tills. Ilia inverAge of this policy shall COmiI'Lle m aMe as Ot Date Or policy in favor o1 (i) air imurdl wife arquims all or any part of its estate or Interest in the land by toieclosuro, IiuslmPs sale, conveyance in lieu of foreclosure or she legal megrm which Ilfsrdxargps the lien of the insured mortgage, (if) a transferee of tnepclate,, or irnere5l sh aCgplfed tram air insured corporation, provided the Iransirrre is the parent or wholly awned subsidiary of the insured rnrpnralion, and their corporate successors by Din n1 IAA and nut fly Vurcha5e, subject to any rights Or dch:rraps Ile, Corinn ry Fil nave against Any predecessor insureds; and (ill) any govemmmllal agrnry Or govenUTIMINl instrumentality which acquires all or any part of the esUl: of if arsst pursuant to a contract of insurance or guaranty insuring of guarHrrleeing the indebtedness secured by Inc insured r uilgayc. of After Conwayanee of Tills. Thp rovsrage Of this policy shall Continuo in tO'eo as o1 DdIO nl Policy in favor M an insured only so long as the Insured retains an estate of Interest III Ihu land, fit hods an Indebtedness secured by a purchase money modg'ayr. given try a purchaser from the Insured, or only so long as ine Insured shall have Ill by oul of rnvenanis Of warranty made by the insured in any transfer u' cunvcyancr, 01 Ilia estate for interest. This polity shall not continue Ill farce In laver n1 any purclla%w bent [lie insured of either (i) all estate of illaost in Ills laud, Or (if) an indebledrles's %eCleeo by a ouicllam mnncy mpdgAge given to (lie insured. (c) Amount of Insurance. Ills afrrr11111I nl ifismanhe After the acquisition of after m0 Co1lvoyallce shall in I O1111W ovum nxlmid Ilia Ica%t of: (1) Ihn allmuld of insr:raime stated in Schedule A, (11) the amount of the principal of the mdcloodncss socurrd by the insured mortgage as of Date of Policy, interest mental, ctril Ls of Ifrecumure, arnnums advanced pursuant m the insured mortgage to assuio COmpli:mcL wall laws or In prevent the lien Of the insured mortgage prior to me Unto of acquisition. n1 Ihu inlaid Or interest in the land and secured mereby and reas011l amours i:xp(:nflud In prFmin dFariorAlion of improvements, but reduced by the amount 01 all Imrymtail; ride; or (I I) Inc arl0uir paid try any governmental agency or govern mental Ilnstrumentality, it TO Hgunry In hislnnrimiHicy is the insured claimant In (11e acqui;ilino fl Ilia H9148 Or interest in satisfaction of its Insurance contract of gifdwy S. NOTICE Of CLAIM TO BE GIVEN BY INSURED CLAIMANT. This iflsurild shall notify the Company pronlptry in writing (I) Ili case q1 any liliyalim As sat forth in Section q(a) beinw. (if) in rase knowledge shall come, In 8o insumd hpmnlder of any claim of title or interest which Is advrisu In the Bill: In this FslatF pf interest or the lien of the insured morgage, as insurer.' . and which Inigld muss Incs or damage for which the Company may be liable by virtu: 01 (his policy, or (ill) if title to the estate Or interest arms lien of Iglu insmud mortgage, a:; ifmlretl, I% rejected as unmarketable. If pmrnel notice snail not be givf:n to Ihn Cfiripany, their as to the Insured all Ilablllry of Inc Company sIj trlmiili: with regard 10 the matter or matters for which prompt IIDIICI: i:; nrcluired: pruvoFtl however, that failure to notify Inc,, Cnmparry s11All ill he case prejudice the rights of any insumll mahn Inns policy unless the Company shall be prejudiced by Inc tailure and (thin only In IIIH idenl of the prejeditie A. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon wrilkin rdqugsl by the insured And subject to the options Contained In Section 6 Of mesa Conditions and Slipulalions Ihr Company, AI its own cost Inc Without unreasonable delay, shall providu lilt Ili(: 1163INH Of Ail imured in litiga ion in which any inird party asserts a claim inj Ili (lie IIIIH nr interest as insured, but Only as to those staled causes or action aduyiny A third, lied or anrOmhrance or other matter insured against by this policy. NO: Company Shall have the right to select counsel of Its choice (sudjnrl [if Ilia right of die insured to object for reasonable C,160) 10 Inpmsrid re insured m to those stated causes of action and Shish nut be liable for and will not pay the fees of any olhri nounsrl. ilia Cfiriparry will not pay airy fees, casts Or expenses Incuried by no irswud In the drhnont: of Ihess causes (if action which allege matters not Insured against by [his policy. (b) This Company shall have the right, at Its own cost. to inslilutr and gmsrrf11il arry ddifn or proceeding or to do any omoi act which in Ica Opinino rosy bu nfcm%Hry fit dssirahle to establish the title tome estate o• Interest of the lien ul lilt, imued mnr]Hye, as insured, or to prevent or reduce less Or damage l0 Rho ill Ihu Company I take any appropriate action under the terms of his policy, whuthu1 Or not it shall hu lidhIF hereunder, and Shall not thereby concede liability of waive Any provision nl funs fculi ly. If the Company shall exercise Its nghls under lhi5 piva9rxpllit shall Ill sin oiligently, (r,) Whenever the Company shall have bmuytd Ail Arbon nr inlpriesed a defense as required or permitted by the, provisions pf Ibis policy, the Company tray pursue any lifjpatiuil In ON dearniiii ion by a Court of competent jurlsilction and expTAsly reserve; top right, in its snit; discretion, to appeal from any adverse judgmrld of molar. (d) In au case's whorl: (his policy permits or requires the Company to prosecute Or provide IOf llc drdsnsr of any action or proceeding, tie insured shall se plc to the Cnufpany the right in so prosecute or provide defense in its action or procuLdwy, and all appeals Retain, and permit the Company to use, at Its Opti00. thr (mirk of tliF m5lirad lot this purpose. Whenever repuested by Me Company, thu insured, At the Company's Fxpenae, shall give the Company all feaSOfiallu did (i) in drfyadion or pricaeding, sell firing evidence. obtaining wimusses, pfosucohny Of defending Ilm afdion nr proceeding, or effecting settlement, and (if) Ili any ether lawlcl act which in the Pillion of the Company may be necessary (A) To Pay or Tend,,, Payment of the Amount of Insurance or to PmchA%s the :ndfId ednes5 (i) 10 pay or tender...o :of110 account or inswanc I pfldli, it II, !Otngeliner with any costs, anomeys fees and expenses incurred Icy aed claimant, which were authorized by the Company, up to rile n , of pHyfnHld or lender Ill payment and which the Company Isnoo iay. If pay', III (II) to purchase thin, inbcaednpm secured by the insured Iluldgagn•. Ill 111F AITII Owing (hereon together with any costs, afforlleys' tciu; and expen;H% incurrsu try thF immced claimant which were authorized by the Cnfflpaly up If Ihr, limes Ili ;lucid And which the Company a obligated to pay. If the Company offers zo purchase the indebtedness as nnfom providedl, the owner of the indebtedness snail tmnsfei, assign, and cut vey Ihs iOiNhlF(neSs And the in%tred mortgage, together with any collateral scuirily, In the Company, upon payment therefor. Doan 1110 Oil by ln: CLnIPHIly if Hither of the options provided for ill paraglaplls all) of (if). all Iiehility and nuliyalimfs to the. insured tinder this policy, other man to make the paynlellt uquiad if Uiii ffelAumphe, Shall terminate, including any IiabilRY or obligation to deend Icumio or nnntinile any litigatiCn and the policy shall re suircrol Cd to IIIL Council for cancellation (b) To Fay of Olnorw5e Slant With Padres 01her than the insured or Win Ilse InsireA Clai it 1. (I) to pay or otherwise settle win atom padie:; [Ili en in Ilia names pl an insured claimdm any claim insured against uldef dint corny, InuHllim with any casts, attorneys' fees and expenses wouioii by tm insured claimard which Were authorized by the Company up to Ills rinc n1 pdyflllnd and which the Company is obligated to pay. of (11) to pay Or othClwiao .011i: with the insured nlAIr and the 1055 of damage proviso Of undci this policy, logilller will any costs, atlerril fees and expenses Incurred by Inc illsuigd daifnanl which were dulhedfpd by the Company ,to to the time Of payment and which Ihu Uoillpacry i:: Ili lipalHd In pay. Upon the exercise by the Company of either of Ili upliuns nrfvidFd or in paragraphs h(i) Or (ii), the Company's obligations to the inswrtl under (his policy for the clamed loss of damage, Omer than the plynmNn required to be made, shall terminate. including any liability of Li if) ilelend, prosecute or continue any hbganon. 7. DETERMINATION AND EXTENT OF LIABILITY. This policy Is a contract of indrinnily against drohal monetary loss or damage sustained or Insures by IllO insumd IJHimmIIl Who has suffered loss or damage by reason o1 mallas innufud against by this pokily and only to the extent herein descrlbell. (a) 1110 Ill lily ill fill, (:mnpHlry a clear 'his Policy shall not exceed the least or: (1) Ihr: Hlllfurfl of ins.irarlce stated in Schedule A, Of. If applicable, In: aroomd Ol insurance as defined in Section 2(c) Of these Conditions and Slipulaliun5', (if) the amount 01 unpaid principal Indebtedness Sefulud try IIIe insured mortgage as limited or provided finder Secliun 9 11 diev, Conditions and Stipulations of as mnucrd antler SFntipn 9 of these Conditions and Stipulations, at the firc I11e iota ur ill insured against by this policy occurstogether with merest treroun; Or (iii) Inc difference bCIwCCn (Ill: value Of Ilre insured estate or interest as insured and Inc value or the icealmd r.%laln Or inlxrHst subject to the defectlien or encumbrance III agaiflsl by Ili% pnliry. (b) In the event ills insunm hi Acquired the estate or interest in the manner descnbed Ili Section 2(a) of IlOrsf: Conditions and Stipulations or has conveyed the titlethen the habif y of Ire Cungrany %1011 pnfirn e as set inch in Section 713) Of these Conditions and Stipulalocii. (c) Tne Company will pay only (lime costs, attorneys" fees and expenses incurred in accordance wills Scot Off A of Mime Cori(liFnus and Stipulations. B. LIMITATION OF LIABILITY. (a) If Ire Company eslahliehes the title, of (removes the all:ged doled, lion or ciu:uruhmnci: Or cores the lack of a right of access to of boot the land, el clue% Ihr claim OI nnmarkedbilily of title, of otherwise eslabhsnes Inc lien 01 t11L :n%IHpfl Infrlgage. All a5 n5ored, in a reasonably diligent manner by any I hind, iIl dudin(I fligation and the completion of any appeals III or. it shall liavu fully prdonnell its obligations with respect to teat if and Shall failed liaox Ill any loss; er damage caused thFrphy. (r) mine evenlofany litigation, includiny lilivalien by[lie Company Or with the Comp rr ys consent. the Company shall lave no hatcilily lot to%s ff damage until there has been a final detel'minalion by A cowl nl cnnylHIFnt jpris(lictior, and disposition of all appeals Ill ' AdvFlsf in III lille or Io the lien of the insured mortgage, as Insuied. (c) The Company snail no( be lie(rlr Ini Ioas Or danfage to any insured for liability Vi IuNAI icy assmrutd by [lie insured in settling any claim Of sun All the 01101 witillbn cnnsrnl or the Cnm,rmy. (d) Ihr. Company shall not be liable for', (i) any indebtedness created subsequent to aid u1 Policy exf:ept lot advAnnes made to protect the lien of the Insured mnilgayu and %poured Ilmreby And reasonable amounts expended to prevent nclurituHlien i iniprnvprnsnis or pi) LoraVdctlon loan advanfns rimat siAnfiquent to Date Of Policyexcept construcllon ball advances" Ill %uhseginl In hale Of Policy Ihr the purpose of financing In whole of in pail Rho cfn%trucliff Of art fincoverripm to the lard which at Date of Policy were soced fly Ihu ill muduaye and whirl the insured Madrid continued to be buligatud 10 adi AI and Ajar Data Of Policy Icy Ally A,1 11 IIF. WF,Irp doll lltllI, this Cornmory %hall re surrogated to and be entitled to all Inglis and mNTIWIR:; whirl Ilia insureC claimant would hays had against any faor piously in 10Spotl IL the r.IHini had this policy not been issued. eared by Inc Company, Pie imured claimant shall transfer to he ry all rights and mmcdics aN'dimt arty Person or property iCeaSafy In order to pCDCCI (his fit]Ill nl AfldnpgAtipn. The IIISpred claimant shall politic Inc Criminally In sue, compromise or settle in the name of Ill mimed CAHirilai'1 and to use the name of the insured claimant in Any hansHchfn or litigation involving these rights of rail 11 a pHylifd on account of claim does not fully cover the loan of Inc II1%pn:d clAinaid, Ire Company shall be surrogated c all rights and colognes of Inc insurnn claimant after the insured claimant shall nave mcovmgd its Immoral, merest and costs of collection. (id) The Imur all Rights and Limitations. Notwithstanding Inc Imegfing, the Owner of the indebtedness sactured by the Insured mortgage, provided (lie priority of the lien of the insured mortgage or its enforceability is eel alteClind ulay release or suhstilute the per%nnal liability of any debtor or guafanlol, Or mlend or othoihiso mmdily Ito: arms of payment, or release a portion of Ire estate of ipleleal from Ill: licit of the insured mortgage, or release any Collaefal security for me IndObtodflOss. When the Polini Hc1s (if Ilia insured claimant occur and the Insured his, kilnwlRdga of any claim of title or interest adverse to Inc litln lu Ilfe e51Ale or interest Or the priority or enforceability of Itle lion of the himoid riling e, as insured, the Company Shall be Pail to pay only Met owl of any losses insured against by this policy which shall exii the HnnAnh if any, last to the Company by reason o1 Ilia iolpaifment by Ills insured rAHIFIr rt of the Company's right of sociagalion. (c) The Cnmpal Rights Against Non-insured Obligors. Inc Company'% right of eibrogj against non Insured obligors shall exist and shall iflAludr, willful limitation, the rights of the Insured to indemnitiesguaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those insInimeris which providp for subrogation rights by reason of this policy. The Cnrnpany's right of subrogation shall not be avoided by ALquisilinn Ill IIIH Insured mortgage by an obligor (except an obligor dnsnilmd in Stir fill 1(a)iii) of these Conditions and Stipulations) who acquires the in5fred mortgage as a result of an indemnity, guaranlsH, pther policy of insurance, or bond and the obligor well nor Is an insured under In policy notwithstanding Section I(a)(I) of mete Cunlitimls arid SlipulAliffm. 13. ARBITRATION. Unless prohibited by applicable law, eioiiir the Company or the it may demand arbitration pursuant to Inc iitlr InsurancH Arbitration Rolm Of ilia American Arbitration Association. Arbilrat& rorhprs may fill bur are nor limited to, any controversy or Claim IlHlween the COnlpany And IIIH insured arising out of or relating to this policy, any aeivicu 01 the Company in inflection With its issuance of the breach Ili a policy provision of nlhpf Obligation. All arbitrable matters when no Amount of Insurance is $1,e00 000 ur less shall be arbitrated a( Ire action) or anther Ill; Cnmparry or the insured. All arbitrable matters wrmri Ilse Pol l of Insurance is in excess of $1 000,ODO shall be Affiliated only when Human In by nor the Compaoyand TO Insured. AdAratien pprsuanl 10 mis policy and inner the Rules in effect on the dale Ilse demand [or arbitration is made of. All IIIH Option of the insured, the Rules In elect at Dale of Policy shall be binding lgmfi the. parties. The award may include attorneys' fees only if the laws if the slate in which the land is located permit a court to award attoul lam In a prevailing party. Judgment flight the award rendered by the Arlocialoc(5) nfAy bH entered in any court haefng jurisdiction thereof. TIP laws of the sites of the land shall apply to an arliilralinn under the lint Imuranl:H Adiitralion Rules. A Copy of Ilia Rules may be obtained from the Company upnn request. 14. LIABILITY LIMITED TO THIS POLICY, POLICY ENTIRE CONTRACT. (a) This policy together with all mldfustments, if any, attached Ill by the Company is the entire policy And contract between the insured and the Company. In Interpreting any pmvisinn of this policy, this policy %pAII fie rnn5Uued as a whole. (r) Any claim of loss or dalnat]e, whether or not based on negligence. and which arises Out of the stalu% of this lien of the Insured nnrliji fit of the title to the estate or Interest Cuvufed canary or ry any action as5cilint] such llam, shah be restricted to this policy. (c) Nil amendment of or endorsement to this policy can be made tacupl by A willing endorsed hereon or attached norrlu signed by either thil P,usidrof. a Vine President the Secretary. an Asslnlanl Sapreiary or validating ulliux of lulhonbed Signatory, of Inc Company. 15. SEVERABILITY. In the event any provision n1 hits policy is held invald of unenforceable under applicable law, Ire pelff:y %hall be deemed not to include that provision and all other provisions shall remain in Nil force and effect Is- NOTICES, WHERE SENT. Al notices required to be given the Company and any statement in writing required to be furnished the Company shall include lilt number of this policy and shall he addressed to the Company at 1 First American Way, Santa Ana, Csldomi a 92707, or to Ills office will issued this policy r L. O. 1056.92 7/92) ,. LOAN POLICY WESTERN REGIONAL EXCEPTIONS CF Cifl l I II IlU m w4l LOAN REP. CITY OF ENCTNITAS AMOUNT OF INSURANCE $350,000.00 DATE OF POLICY: NOVEMBER 25, 2002 AI' 4:59 P.M. NAME OF INSURED: ROBERT H. BARELMANN AND MARGARET L. BARELMANN ORDER NO. 1283481-4 POLICY NO. 128348 1 -4 PREMRJM $-0- 2. THE ES'PA'I'E OR INTEREST IN THE LAND WHICH IS ENCUMBERED BY THE INSURED MORTGAGE IS: FEE 3. TITLE TO THE ESTATE OR INTEREST IN THE LAND 1S VESTED IN: CITY OF ENCINITAS, A C.ALIFORNIA MUNICIPAL CORPORATION 4. TIIE INSURED MORTGAGE AND ASSIGNMENTS THEREOF, IF ANY, ARE DESCRIBED AS FOLLOWS: A DEED OF TRUST'1'O SECURE AN INDEBTEDNESS IN THE ORIGINAL PRINCIPAL SUM OF $350,000.00, RECORDED NOVEMBER 25, 2002 AS FILE NO. 2002-1070875 OF OFFICIAL RECORDS. DATED: NOVEMBER 5, 2002 TRUSTOR: CITY OF ENCINITAS, A CALIFORNIA MUNICIPAL CORPORATION TRUSTEE: FIDELITY NATIONAL TITLE COMPANY, A CALIFORNIA CORPORATION BENEFICIARY: ROBERT H. BARELMANN AND MARGARET L. BARELMANN, HUSBAND AND WIFE. 5. THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLOWS: SEE FXI-HBIT "1" ATTACHED HERETO PAGE I l Y i O. 1056.92 ORDER NO. 1283481-4 �� ry 7riz) LOAN POLICY WESTERN REGIONAL EXCEPTIONS SCHEDULE.. B THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE (AND THE COMPANY WILL NOT PAY COSTS, ATTORNEYS' FEES OR EXPENSES) WI ITCH ARISE BY REASON OF: PART ONE, SECTION ONE: TAXES OR ASSESSMENTS WHICH ARE NOT SHOWN AS EXISTING LIENS BY THE RECORDS OF ANY TAXING AUTHORITY THAT LEVIES TAXES OR ASSESSMENTS ON REAL PROPERTY OR BY THE PUBLIC RECORDS. 2- ANY FACTS, RIGHTS, INTEREST, OR CLAIMS WHICH ARE NOT SHOWN BY THE PUBLIC RECORDS BUT WIIICII COULD BE ASCERTAINED BY AN INSPECTION OF SAID LAND OR BY MAKING INQUIRY OF PERSONS IN POSSESSION THEREOF. 3. EASEMENTS, CLAIMS OF FASFMINT OR ENCUMBRANCES WHICH ARE, NOT SHOWN BY THE .PUBLIC RECORDS. 4. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGE IN AREA, ENCROACHMENTS, OR ANY O'1TIER FACTS WHICH A CORRECT SURVEY WOULD DISCLOSE, AND WHICH ARE NOT SI [OWN BY PUBLIC RECORDS- 5. (A) UNPATENTED MINING CLAIMS; (B) RESERVATIONS OR EXCEPTIONS IN PATENTS OR 1N ACTS AUTI IORIZING THE ISSUANCE THEREOF; (C) WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT TI IF MATTERS EXCEPTED UNDER (A), (B) Olt (C) ARE, SHOWN BY TI IE PUBLIC RECORDS. 6. ANY LIEN, OR RIGHT TO A LIEN, FOR SERVICES, LABOR Olt MATERIAL THERETOFORE OR HEREAFTER FURNISHED, IMPOSED BY LAW AND NOT SHOWN BY THE PUBLIC RECORDS. PART ONE, SECTION TWO: TAXES FOR PRORATION FOR TIIF, FISCAL. YEAR 2002-2003 FIRST HALF: $1,724.01, PAID - SECOND HALF: $1,724.01, OPEN, CODE AREA: 19208. A-P- NO-: 216-110-42-00, 2. THE LIEN OF SUPPLEMENTAL TAXES ASSESSED PURSUANT TO CHAPTER 3.5 COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE AND TAXATION CODE. 1 TI IE EFFECT, IF ANY, OF RECORD OF SURVEY MAP NO- 6269, WHICH SETS FORTH, Olt PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE HEREIN DESCRIBED PROPERI'Y- PAGE2 r O. 1056.92 ORDER NO. 1283481-4 7/92) y .. LOAN POLICY WE REGIONAL EXCEPTIONS 4. AN EASEMENT FOR DRAINAGE AND INCEDFNTA1. PURPOSES 1N FAVOR OF HIE COUNTY OF SAN DIEGO, RECORDED JANIJARY 3, 1968 AS FILE NO. 1570 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: OVER THAT POK FION OF SAID EAST HALF OF LOT 7 LYING NORTI I OF PARCEL 65492- A HERFINBEFORE DESCRIBED AND LYING WITHIN A STRIP OF LAND 10 FEET WIDE, 5 FEET ON EACH SIDE OF A LINE DRAWN NOK'114EFLY AND RADIALLY FROM ENGINEER'S STATION 80+40 OF ROAD SURVEY NO. 1796, A PLAT OF 'WHICH IS ON FILE IN TI IE OFFICE OF THE COUNTY ENGINEER, TO TI IF NORTH LINE OF SAID LOT 7. 5, AN AGREEMENT REGARDING LIMITED AVAILABILITY OF SEWER SERVICE, DATED OCTOBER 28, 1981, UPON THE TERMS, COVENANTS, AND CONDITIONS CONTAINED THEREIN. EXECUTED BY AND BETWEEN: LEUCADIA COUNTY WATER DISTRICT AND WILDERNESS ESTATES. RECORDED: DECEMBER 9, 1981 AS FILE NO. 81-385912 OF OFFICIAL RECORDS. 6. TEIE EFFECT, IF ANY, OF RECORD OF SIJRVEY MAP NO. 10452, WHICH SETS FORTH, OR PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE IIERF,IN DESCRIBED PROPERTY. 7. THE EFFECT, IF ANY, OF RECORD OF SURVEY MAP NO. 10774, WHICH SETS FORFIi, OR PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE. HEREIN DESCRIBED PROPERTY. 8. AN EASEMENT FOR PUBLIC HIGHWAY AND INCIDENTAL PURPOSES, RECORDED NOVEMBER 4, 1987 AS INS'IRUMIiNT NO. 87-620260 OF OFFICIAL RECORDS, GRANTED TO: THE CITY OF CARLSBAD, STATE OF CALIFORNIA. THE ROUTE OF SAID EASEMENT IS SET OUT IN SAID DOCUMENT AND AFFECTS A PORTION OF THE HEREIN DESCRIBED PROPERTY. SAID INSTRUMENT ALSO GRANTS THE PRIVILEGE AND RIGHT 'FO EXTEND AND MAINTAIN DRAINAGE STRUCTURES AND EXCAVATION AND EMBANKMENT SLOPES BEYOND THE LIMITS OF SAID RIGHT OF WAY WHERE REQUIRED FOR THE CONSTRUCTION AND MAINTENANCE THEREOF. 9. AN EASEMENT FOR GRADING, LANDSCAPING, IRRIGATION AND INCIDENTAL PURPOSES IN FAVOR OF THE CITY OF CARLSBAD, STATE OF CALIFORNIA, RECORDED NOVEMBER 4, 1987 AS FILE NO. 87-620261 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THAT PORTION OF LOT7 OF SECTION 34, TOWNSHIP 12 SOUTI1, RANGE 4 WEST, SAN 13ERNARDINO BASE AND MERIDIAN, 1N TI IF CITY OF CARLSBAD, COUNTY OF SAN ❑IEGO, STATI'. OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT TIIERFOF, DESCKIBEDAS FOLLOWS: PAGE Ll 7/92)0..1056.92 R�\ P1 0 LOAN POLICY WESTERN REGIONAL EXCEPTIONS ORDER NO. 1283481-4 BEGINNING AT THE SOUTHEAST CORNER OF LOT 15 OF SAID SECTION 34; THENCE ALONG THIS EASTERLY LINE OF SAID LOT 15, SOUTH 0002710" EAST, 8.55 FEET; THENCE SOUTH 7803548" WEST, 369.13 FEE1' FO THE BEGINNING OF A TANGENT, 1,360 FOOT RADIUS CURVE, CONCAVE NORTHERLY; HIENCE WESTERLY ALONG THE ARC OF SAID CURVET] IROUGII A CENTRAL ANGLE OF 08024'58" A DISTANCE OF 199.77 FEET; THENCE NON -TANGENT I'O SAID CURVE, NORTH 67041,25" EAST, 148-68 FFFT; THENCE NORTH 83014'07" EAST, 42521 FEET TO THE POINT OF BEGINNING - TOGETHER WITH THE RIGHTOF ACCESSTO INGRESS AND EGRESS OVER, UNDER, AND ACROSS SAID GRANTOR'S LAND TO INSTALL (INCLUDING HIS SUCCESSORS AND ASSIGNS), CONSTRUCT, MAINTAIN, REPAIR, REPLACE, RECONSTRUCT, AND INSPECT ANY STRUCTURES OR GRADING DEEMED NECESSARY FOR THE MITIGATION REQUIREMENTS OF THE CALIFORNIA COASTAL COMMISSION AND CITY OF CARLSBAD- REFERENCE IS MADE TO SAID 1NSTRUN ENTFOR FURTHER PARTICULARS. 10. AN EASEMENT FOR SLOPE GRADING AND DRAINAGE STRUCTURE CONSTRUCTION AND INCIDENTAL PURPOSES IN FAVOR OF THE CITY OF ENCINITAS, RECORDED APRIL 13, 1994 AS FILE NO, 1994-0244897 OF OFFICIAL RECORDS. THE ROUTE OF SAID EASEMENT IS SET OUT IN SAID DOCUMENT AND AFFECTS A I'OR'1'ION OF TI IE HEREIN DESCRIBED PROPERTY. II. ANY CLAIM THAT ANY PORTION OF THE LAND IS TIDELANDS BELOW THE LINE OF NATURAL LOW TIDE WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL CI-IANGES IN THE SHORELINE. 12. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGES IN AREA, ENCROACHMENTS, OR ANY OTHER FACTS WHICH A CORRECT SURVEY WOULD DISCLOSE, AND WI IICH ARE NOT SHOWN BYTHE PUBLIC RECORDS. PAGE O. 1056.92 7i..2) LOAN POLICY WESTERN REGIONAL EXCEPTIONS SCHEDULE B PART II 161 N 11I1 Mao]* i;RLtf l73 E! IN ADDITION TO THE MATTERS SET FORTH IN PART I OF THIS SCIIEDIILE, THE TITLE OR INTEREST IN THE LAND DESCRIBED OR REFERRED TO IN SCHEDULE (A) IS SUBJECT' TO THE FOLLOWING MATTERS, IF ANY BE SHOWN, BUT THE COMPANY INSURES THAT THESE MATTERS ARE SUBORDINATE TO THE LIEN OR CHARGE OF THE INSURED MORTGAGE UPON SAID ESTATE OR INTEREST: I24I9104Iq PAGE 5 This map may or may not be a vurvey Oe land depicted hereon. First Amcr�can cxrressly*aims any liability of loss or damage which may result front rchimee on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of -the title insurance p!oliu--ifwjh to which this map is atluclied, f _ r G f' • rat � R A� Pn I .,s �t / mNNn InNYld ip l 1 •n[� P.?A�1 h dql o U YK tj o W O V mlu P N mm 'n A N �i A ED pplMF.lIJU18:Il t:7 13 MON A V WINN% 5� Ya 4 Order: 1283481 Doc: CA-SD-ARi'-216.1 1 DataTree via FASTSearch Form Nn. 1402.92 (10/17/92) ALTA Owners Policy POLICY OF TITLE INSURANCE First American Title Insurance Company SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of 1. Title to the estate or interest described in Schedule A being vested other than as stated therein. 2. Any defect in or lien or encumbrance on the title, 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. First American Title Insurance. Company r PT?FS1L)FN 1 "r,1•::AM ---- EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay lass or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance Or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; fill) a separation in ownership or a change in the dimensions Or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect Of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation Or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the Insured claimant; (d) attaching or created subsequent to Date of Policy, or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. 4. Any claim, which arises out Of the transaction vesting in the Insured the estate or interest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that is based on; (i) the transaction creating the estate or interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer; or (ii) the transaction creating the estate or interest insured by this policy being deemed a preferential transfer except where the preferential transfer results from the failure: (a) to timely record the instrument of transfer; or (b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS DEFINITION OF TERMS. The following terms when used in this policy mean: (a) "insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had agalnsl the named Insured, those who succeed to the interest of the named insured by operation of law as distinguished from purchase Including, but not limited to, heirs, distributees, devisees, survivors, personal representa- tives, next of kin, or corporate or fiduciary successors. (b) "insured claimant': an insured claiming loss or damage. (e) "knowledge" or "known". actual knowledge, not constructive knowledge or notice which may be irlrputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule (A), and improvements affixed thereto which by law constitute real property. The term "land" does not include any Property beyond the Imes of the area described or referred to In Schedule (A), Igor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is Insured by this policy. (e) "mortgage"; mortgage, deed of trust, trust deed, or other security instrument. (f) "public records": records established understate statutes at Date of Polley for the purpose of Imparting constructive notice of matters relating to real properly to purchasers far value and without knowledge. With respect to Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also incude environmental protection liens filed in the records of the clerk of the. United States district court for the district in which the land is located. (g) onmarketabllity, of the title'; an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would entitle a purchaser of the estate or interest described in Schedule A to be released from the obligation to purchase by virtue of a contractual condition requiring the dellvery of marketable title. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue In force as of Date of Polley in favor of an Insured only so long as the insured retains an estate or Igterest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so Inng as the by this policy Which constitutes the basis of loss nr damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under Ilse policy shall terminate, including any liability or obligation to defend, prosecute, or Continue any litigation, with regard to the matter or matters requiring such proof of loss or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and Copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers. Checks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss Or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized rep- resentative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and mem- oranda in the custody or control of a third party, which reasonably pertain to the loss or damage All information designated as confidential by lire insured claimant provided to the Company pursuant to this Section shall riot he disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary informa- tion from third parties as required in this paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company underthis policy as to mat claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY. In case of a claim under this policy, the Company shall have the following additional nptions: (a) to Pay or Tender Payment of the Amuunt of Insurance, To pay or lender payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred by the insured claimant, which were authorized by the Company, up to the time of payment or tf.nder of payment and which the Company is cb�gated to Pay. it the exercise by the Company of this option, all liabil d obligations to the insured under this policy, other than to make the payment required, shall terminate, Including any liability or obligation to defend, prosecute., or continue for any loss or damage caused thereby. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of Competent jurisdiction, and disposition of all appeals therefrom, adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY. All payments underthis policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the Insurance pro tame. 11. LIABILITY NONCUMULATIVE. It is expressly understood that the Amount of In- surance under this Polley shall be reduced by ally amount the Company may pay under any policy insuring a mortgage to which exception is taken in Schedule B or to which the insured has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to In Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS. (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed, In which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT The Company's Right of Suhrogallan. enever the Company shall have settled and paid a clai er this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogatod to and be entitled to all the --mtsurea Snlaltrrave narotmy9y _.,onoTCDVe—lrm§bfWamanty made by the insured in any transfer or conveyance of the estate or interest. This policy�shall not dontinue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (h) an indebtedness secured by a purchase money mortgage given to the insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, hi) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as insured, and which might cause loss or damage for which the Company may he liable by virtue of this policy, or (iii) if title to the estate or interest, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required: provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or en- cumbrance or other matter insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cast, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision ofthis policy. lithe Company shallexercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insured, at the Company's expense, shall give the Company all reasonable aid (i) in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, orcontinue any litigation, with regardtothe matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in, or lien or encumbrance on the title, or other matter insured against 1j-ioys'r., af.:S rn P �,bf„n-vo uw e w w Iv Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the I d or With the Insured Claimant. to pay or otherwise settle with other parties for or in name of an insured claimant any claim inaiued. Against under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs (h)(i) or (ii), the Com- pany's obligations to the insured under this policy for the claimed loss or damage, otherthan the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute or continue any litigation. 7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE. This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described. (a) The liability of the Company under this policy shall not exceed the least of: (i) the Amount of Insurance stated In Schedule A; or (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy. (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A, then this Policy is subjecito the following: (i) where no subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that the Amount of Insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy; or (it) where a subsequent improvement has been made, as to any partial loss, the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement. The provisions of this paragraph shall not apply to costs, attorneys' fees and expenses for which the Company is liable under this policy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. (c) The Company will pay only those costs, attorneys' fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. B. APPORTIONMENT. If the land described in Schedule (A)(C) consists of two or mare parcels which are not used as a single site, and a loss is established affecting one or more of the parcels but not all, the loss shall be computed and settled on a pro rate basis as if the Amount of Insurance under this policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole, exclusive of any improvements made sub- sequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or by an endorsement attached to this policy. 9. LIMITATION OF LIABILITY. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures the lack of a right of access to or from the land, or cures the claim of unmarketability of title, all as insured, in a reasonably diligent manner by any method, including litigation and the comple- tion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable had against any person orp�dp'erty" in respect to the claim had this policy not been issued. If requested by the Company, the insurbd Claimant shall transfer to the Company all rights and dies against any person or property necessary in ord fect this right of subrogation. The insured claim shall permit the Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. It a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the proportion which the Company's payment bears to the whole amount of the loss. It loss should result from any act of the insured claimant, as stated above, that act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against non-insured Obligors. The Company's right of subrogation against non- insured obligors shall exist and shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subrogation rights by reason of this policy. 14. ARBITRATION. Unless prohibited by applicable law, either the Com- pany or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of Insurance is $1,000,D00 or less shall be arbitrated atthe option of either the Company or the insured. All arbitrable matters when the Amount of Insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the insured. Arbitration pursuant to this policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at Date of Policy shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrators) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, it any., attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpret- ing any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary,. or validating officer or authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES, WHERE SENT. All notices required to be given the Company and any statement in wdtlng required to be furnished the Company shall induce the number of this policy and shad be addressed to the Company at t First American Way, Santa Ana, California 92707, or to the office which issued this policy. Ei z rib • b hT. 1402.92 �1q�17F42) ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS CT SCHEDULE A AMOUNT OF INSURANCE $1,400,000.00 DATE OF POLICY: NOVEMBER 25, 2002 AT 4:59 P.M. I . NAME OF INSURED: ORDER NO. 1283481-4 POLICY NO. 1283481-4 PREMIUM $2,000.00 CITY OF ENCINITAS, A CALIFORNIA MUNICIPAL CORPORATION 2. THE ESTATE OR INTEREST IN THE LAND INSURED HEREIN IS: FEE 3. TITLE TO THE ESTATE OR INTEREST IN THE LAND IS VESTED IN: CITY OF ENCINITAS, A CALIFORNIA MUNICIPAL CORPORATION 4. THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLOWS: SEE EXHIBIT "I" ATTACHED HERETO PAGE I h� � . 0 N3. 1402.92 ORDER NO. 1283481-4 I1h7I92) `ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS SCHEDULE B THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE (AND THE COMPANY WILL NOT PAY COSTS, ATTORNEYS' FEES OR EXPENSES) WHICH ARISE BY REASON OF: PART ONE: TAXES OR ASSESSMENTS WHICH ARE NOT SHOWN AS EXISTING LIENS BY THE RECORDS OF ANY TAXING AUTHORITY THAT LEVIES TAXES OR ASSESSMENTS ON REAL PROPERTY OR BY THE PUBLIC RECORDS. 2. ANY FACTS, RIGHTS, INTEREST, OR CLAIMS WHICH ARE NOT SHOWN BY THE PUBLIC RECORDS BUT WHICH COULD BE ASCERTAINED BY AN INSPECTION OF SAID LAND OR BY MAKING INQUIRY OF PERSONS IN POSSESSION THEREOF. 3. EASEMENTS, CLAIMS OF EASEMENT OR ENCUMBRANCES WHICH ARE NOT SHOWN BY THE PUBLIC RECORDS. 4. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGE IN AREA, ENCROACHMENTS, OR ANY OTHER FACTS WHICH A CORRECT SURVEY WOULD DISCLOSE, AND WHICH ARE NOT SHOWN BY PUBLIC RECORDS. 5. (A) UNPATENTED MINING CLAIMS; (B) RESERVATIONS OR EXCEPTIONS IN PATENTS OR IN ACTS AUTHORIZING THE ISSUANCE THEREOF; (C) WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT THE MATTERS EXCEPTED UNDER (A), (B) OR (C) ARE SHOWN BY THE PUBLIC RECORDS. 6. ANY LIEN, OR RIGHT TO A LIEN, FOR SERVICES, LABOR OR MATERIAL THERETOFORE OR HEREAFTER FURNISHED, IMPOSED BY LAW AND; NOT SHOWN BY THE PUBLIC RECORDS. PART TWO: TAXES FOR PRORATION FOR THE FISCAL YEAR 2002-2003 FIRST HALF: $1,724.01, PAID. SECOND HALF: $1,724.01, OPEN. CODE AREA: 19208. A.P. NO.: 216-110-42-00. 2. THE LIEN OF SUPPLEMENTAL TAXES ASSESSED PURSUANT TO CHAPTER 3.5 COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE AND TAXATION CODE. THE EFFECT, IF ANY, OF RECORD OF SURVEY MAP NO. 6269, WHICH SETS FORTH, OR PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE HEREIN DESCRIBED PROPERTY. PAGE A 1. 1402.92 ORDER NO. 1283481-4 AfT"A OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS 4. AN EASEMENT FOR DRAINAGE AND INCIDENTAL PURPOSES IN FAVOR OF THE COUNTY OF SAN DIEGO, RECORDED JANUARY 3, 1968 AS FILE NO. 1570 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: OVER THAT PORTION OF SAID EAST HALF OF LOT 7 LYING NORTH OF PARCEL 65492- A HEREINBEFORE DESCRIBED AND LYING WITHIN A STRIP OF LAND 10 FEET WIDE, 5 FEET ON EACH SIDE OF A LINE DRAWN NORTHERLY AND RADIALLY FROM ENGINEER'S STATION 80+40 OF ROAD SURVEY NO. 1796, A PLAT OF WHICH IS ON FILE IN THE OFFICE OF THE COUNTY ENGINEER, TO THE NORTH LINE OF SAID LOT 7. AN AGREEMENT REGARDING LIMITED AVAILABILITY OF SEWER SERVICE, DATED OCTOBER 28, 1981, UPON THE TERMS, COVENANTS, AND CONDITIONS CONTAINED THEREIN. EXECUTED BY AND BETWEEN: LEUCADIA COUNTY WATER DISTRICT AND WILDERNESS ESTATES. RECORDED: DECEMBER 9, 1981 AS FILE NO. 81-385912 OF OFFICIAL RECORDS. 6. THE EFFECT, IF ANY, OF RECORD OF SURVEY MAP NO. 10452, WHICH SETS FORTH, OR PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE HEREIN DESCRIBED PROPERTY. THE EFFECT, IF ANY, OF RECORD OF SURVEY MAP NO. 10774, WHICH SETS FORTH, OR PURPORTS TO SET FORTH, CERTAIN DIMENSIONS AND BEARINGS OF THE HEREIN DESCRIBED PROPERTY. 8. AN EASEMENT FOR PUBLIC HIGHWAY AND INCIDENTAL PURPOSES, RECORDED NOVEMBER 4, 1987 AS INSTRUMENT NO. 87-620260 OF OFFICIAL RECORDS. GRANTED TO: THE CITY OF CARLSBAD, STATE OF CALIFORNIA. THE ROUTE OF SAID EASEMENT IS SET OUT IN SAID DOCUMENT AND AFFECTS A PORTION OF THE HEREIN DESCRIBED PROPERTY. SAID INSTRUMENT ALSO GRANTS THE PRIVILEGE AND RIGHT TO EXTEND AND MAINTAIN DRAINAGE STRUCTURES AND EXCAVATION AND EMBANKMENT SLOPES BEYOND THE LIMITS OF SAID RIGHT OF WAY WHERE REQUIRED FOR THE CONSTRUCTION AND MAINTENANCE THEREOF. 9. AN EASEMENT FOR GRADING, LANDSCAPING, IRRIGATION AND INCIDENTAL PURPOSES IN FAVOR OF THE CITY OF CARLSBAD, STATE OF CALIFORNIA, RECORDED NOVEMBER 4, 1987 AS FILE NO. 87-620261 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 7 OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: PAGE 1. 1402.92 ORDER NO. 1283481-4 AL`lA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS BEGINNING AT THE SOUTHEAST CORNER OF LOT 15 OF SAID SECTION 34; THENCE ALONG THE EASTERLY LINE OF SAID LOT 15, SOUTH OW27'10" EAST, 8..55 FFFT; THENCE SOUTH 78035'48" WEST, 369A3 FEET "1'O THE BEGINNING OF A FANGFNT, 1,360 FOOT RADIUS CIJRVF.., CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGI I A CENTRAL ANGLE OF 08024'58" A DISTANCE OF 199,77 FEET; THENCE NON -TANGENT TO SAID CURVE, NORTI1 6741'25" FAST, 148.68 FEET; Ti IFNCF. NORTH 83°14'07" EAST, 425.21 FEET TO'IHE I'OIN'1 OF BEGINNING. TOGETHER WII'II'I'IIE RIGHT OF ACCESS TO INGRESS AND EGRESS OVER UNDER, AND ACROSS SAID GRANTOR'S LAND TO INSTALL (INCL1JDING HIS SUCCESSORS AND ASSIGNS), CONSTRUCT, MAINTAIN, REPAIR, REPLACE, RECONSTRUCT, AND INSPECT ANY S'IRUCT'URES Olt GRADING DEEMED NECESSARY FOR THE MITIGATION REQUIREMENTS OF THE CALIFORNIA COASTAL COMMISSION AND CITY OF CARLSBAD, REFERENCE 1S MADE TO SAID INSTRUMENT F'OR FURTI IER PARTICULARS. 10. AN EASEMENT FOR SLOPE GRADING AND DRAINAGE STRUCTURE CONSTRUCTION AND INCIDENTAL PURPOSES IN FAVOR OF THE CITY OF ENCINITAS, RFCORDFD APRIL 1.3, 1994 AS FILE NO. 1994-0244897 OF OFFICIAL RECORDS. THE ROUTE OF SAID EASEMENT IS SET OUT 1N SAID DOCUMENT AND AFFECTS A PORTION OFTHE HEREIN DESCRIBED PROPERTY. 1 I. ANY CLAIM THAT ANY PORTION OF THE LAND IS 'TIDELANDS BELOW THE LINE, OF NATURAL. LOW TIDE WHERE IT WAS LOCATED PRIOR TO ANY AR I"IFICIAI, CHANGES IN'THE SHORELINE. 12. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGES IN AREA, ENCROACHMENTS, OR ANY OTHER FACTS WHICH A CORRECT SURVEY WOULD DISCLOSE, AND WHICH ARE NOT SI [OWN BY TI IE PUBLIC RECORDS, 13. A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE ORIGINAL PRINCIPAL SUM OF $350,000.00, AND ANY OTHER AMOUNTS OR OBLIGATIONS SECURED THEREBY, RECORDED NOVEMBER 25, 2002 AS FILE NO. 2002-1070875 OF OFFICIAI. RECORDS. DATED: NOVEMBER 5, 2002 TRLISTOR: CITY OF ENCINITAS, A CALIFORNIA MUNICIPAL, CORPORATION TRUSTEE: FIDELITY NATIONAL TITLE COMPANY, A CALIFORNIA CORPORATION BENEFICIARY: ROBERTH. BARELMANN AND MARGARET L. BARELMANN, HUSBAND AND WIFE. PAGE 4 'Phis map may or may not he a survey land depicted hereon, First Arneri��s.sly d ims any liability of loss or damage which may result trm»teNance on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the. title insurance policy, if any, to which this map is attached. _ r n. io- , l�l r" VJ N T M N flog S09 ign .Cr P UP KD �¢� to • N ;:� � q�ciST Imo~ w v NN 10v3(no i m,n-1 V N ruRu Wry y wlw A ,N In Q, m mC . a NUN I U ^l .ia is .rs:�•y P � a ?nwrl�cl Si rn a r 0 �a ■■■ ■n �1�aai:a ac�i� �1111. ' MOM Eat a Order: EKIT 1 Doc: CA-SD-ABP-216.11 A 0 •d t=o 1 K m ass o I DataTree via FASTSeareh lrn % a , . • 1 6.1402.92 ALTA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS EXHIBIT "1" ORDER NO. 1283481-4 THE EAST' HALF OF LOT 7 OF TI IE NORTI (WEST QUARTER OF TI IF SOl1THFAST QUARTFR OF SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT TI IERFOF. EXCEPTING THEREFROM THAT PORTION LYING WITHIN ROAD SURVEY NO. 1796'TAKEN BY TIIE COUNTY OF SAN DIEGO BY FINAL ORDER OF CONDFMNATFON RFC'ORDFD JANUARY 3, 1968 AS FILE NO. 1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEET WIDE, 42 FEETON EACH SIDE OF TIIE FOLLOWING DESCRIBED CENTER LINT: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED APRIL 6, 196,5 AS FILE NO, 60313 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER IN SAID SAN DIFGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2 INCH PIPE TAGGED "DIV.HWYS." BEING AT COORDINATES Y-335,887.14 FEET AND X-I, 680,010,03 FEET; THENCE ALONG BEARINGS AND DISTANCES BASED ON THE CALIFORNIA COORDINATE SYSTEM GRID ZONE VI AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTERLY BOUNDARY LINE AND THE PROLONGATION THEREOF, 90.00 FFFT TO THE TRUE•. POINT OF BEGINNING, SAID POINT HAVING GRID COORDINATES N-335,808.173 AND E-1,680,053.206 OF SAID GRID ZONE VI; THENCE NORTH 61019'54" EAST, 24.37 FEET TO THE BEGINNING OF A'TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CFNTRAf, ANGLE OF 3034'25", A DISTANCE OF 302.50 FEET; THENCE TANGENT" I'O SAID CURVE NORTII 57045'29" EAST, 405.52 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1400 FEET; T'IIENCE EASTERLY ALONG SAID CURVE TIIROUGII A CENTRAL ANGLE OF 15013'25", A DISTANCE OF 371.98 FEET; THENCE TANGENT TO SAID CURVE NORTH 72"58'54" EAST, 418.15 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1400 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18011'59", A DISTANCE OF 444.70 FEET; THENCE TANGEN I' TO SAID CURVE SOUTH 88049'07" EAST, 1443.1.7 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT I IAVING A RADIUS OF 1400 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12035'05", A DISTANCE OF 307.50 FEET; THENCE TANGENT TO SAID CURVE NORTH 78035'48" EAST, 870.32 FEET" l'O THE POINTOF BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1700 FEET; SAID POINTBEING ENGINEER'S STATION 89+61.70 B.C. IN THE CENTER LINE OF ROAD SURVEY NO. 1796-6.5 ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR IN SAID SAN DIEGO COUNTY AS SIIOWN ON SHEET 4 OF SAID SURVEY; THENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 40022'26", A DISTANCE OF 1197.92 FEET; THENCE TANGENT TO SAID CURVE SOUTH 61001'46" FAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE LEFTHAVING A RADIUS OF 1500 FEF..T; SAID PAGE 46. 1402.92 . oll �7l!2) AI'TA OWNER'S POLICY WESTERN REGIONAL EXCEPTIONS ORDER NO. 1283481-4 POINI BEING ENGINEER'S STATION 114+57.30 B.C. IN THE CENTER LINE. OF SAID ROAD SURVEY NO. 1796-65; 1IiENCE SOUTIIEASTERLY ALONG SAID CURVE THROUGH A. CENTRAL ANGLE OF 34011'14", A DISTANCE OF 895.02 FEET; THENCE TANGENT TO SAID CURVE NORTFI 84047'00" FAST, 689,81 FEET TO A PO1N'l ON THE CENTER LING OF ROAD SURVEY NO.682, A PLAT OF WI I1CI1 IS ON FILE IN SAID OFFICE OF THE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52002'49" EAST, 558.81 FEET FROM THE EASTERLY TERMINUS OF TI IF COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSI IIP 12 SOU'II-1, RANGE 4 WEST, SAID CI?NTFR LINE POINT AI.SO HAVING GRID COORDINATES; N- 335,770.646 AND E-1,688,300.279 OF ZONE VI. PAGE 6 Reaprdin4requested by and MNFORMEp When recorded mail to: COPY ��}}' Don Pope, i.ocal Assistance Engineer I� State ofCalifomia Department of Transportation, District 11 Office of Local Assistance 2829 Juan Street San Diego, CA 92110 DOC 02003-0159340 FED 11, 2003 4 : 30 PH OFFICIAL RECORDS SAN DIESO COl1HTY RECORDER'S OFFICE OREGORY J. SMITH, CWY RECORDER FEES: 0.00 (Space above for Recorder's use.) AGREEMENT DECLARING RESTRICTIVE COVENANTS State Project Number: EEM-2001(127) Agreement Number: 11-11-35 This Agreement Declaring Restrictive Covenants, hereinafter referred to as "ADRC", is entered into effective this ivy" day of 7;rV4 , 2003, by and between City of Encinitas, hereinafter referred to as "COE," and the California Department of Transportation, hereinafter referred to as the "DEPARTMENT." A. WHEREAS, the COE. acquires the real property described in Exhibit ADRC-A, attached hereto and incorporated herein by this reference, bereinafler referred to as "REAL PROPERTY", in fee simple in the County of San Diego, State of California, designated 216-110-42-00; and 13. WHEREAS, this REAL PROPERTY possesses wildlife and habitat values, hereinafter referred to collectively as CONSERVATION VALUES, of great importance to the DEPARTMENT, COE and the People of the Stata q# California; and w� C. WHEREAS, COL is authorized to hold property in fee simple for these purposes pursuant to COE Resolution No. 2064786, dated November 15, 2000, and other California law; and D. WHEREAS, the REAL PROPERTY is intended to provide mitigation of certain direct and/or indirect impacts of the transportation project described in Exhibit ADRC-Al, attached and hereto incorporated herein by this reference, located in the County of Contra Costa, Slate of California; and E. WHEREAS, the COE is intended to use the REAL PROPERTY only as detailed in Exhibit ADRC-Al "Original EFM Application," and for no purposes that are inconsistent with ADRC-Al, attached hereto and incorporated herein by this reference, hereinafter referred to as "F,NHANCEMENT AND MITIGATION REQUIREMENTS"; ; and EEM-2003 (003) 01/29/03 F. WHEREAS, the DEPARTMENTwill provide funds allocated by the California Transportation Commission to COE to purchase REAL PROPERTY to satisfy said ENHANCEMENT AND MITIGATION RFQiIIREMENTS; and G. WHEREAS, both the DEPARTMENT and COE desire and intend to permanently restrict the REAL PROPERTY uses to preserve, protect, enhance, monitor and restore in perpetuity the CONSERVATION VALUES of the REAL. PROPERTY so that the State of California shall be benefited and each successive owner of all or part of said REAL PROPERTY shall be benefited by the preservation of the species and habitat preserved and protected on the REAL PROPERTY in accordance with the MITIGATION REQUIREMENTS, hereinafter referred to as the "CONSERVA'T'ION PURPOSES". NOW THEREFORE, in consideration of the mutual promises of the parties hereto, each to the other as covenantors and covenantees, and expressly for the substantial benefits to be derived therefrom, and to bind their successors in interest, the said parties agree as follows: Management and Maintenance of Property I. Only the detailed uses described in Exhibit ADRC-Al, attached hereto and incorporated herein by this reference, shall be made of the REAL PROPERTY. Any uses inconsistent with the uses explicitly stated in Exhibit ADRC-Al are not allowed. 2. COE will own, use, manage and maintain, now and in the future, the REAL PROPERTY pursuant to this ADRC and consistent with the CONSERVATION PURPOSES, the MITIGATION REQUIREMENTS and this ADRC. If COE or COE successors or assigns fail to use, manage and maintain the REAL PROPERTY consistent with the terms of the CONSERVATION PURPOSES, the MITIGATION REQUIREMENTS and this ADRC, COE or COF, successors or assigns will be required to cure said noticed violation within forty-five (45) calendar days of becoming aware of that violation. If COE or COE successors or assigns fail to cure the violation within forty-five (45) calendar days of becoming aware or where the violation cannot reasonably be cured within forty-five (45) calendar days, fails to begin tuning such violation within that forty-five (45) calendar day period, or fails to continue diligently to cure such violation until finally cured, sucb failure will be deemed as a default of this ADRC. If default occurs, the CONSERVATION PURPOSES will have deemed violated and COE or COE successors or assigns must comply with the requirements set forth in section 4 below. i 3. All of the REAL PROPERTY acquired to satisfy the MITIGATION REQUIREMENTS shall be subject to this ADRC. UREAL PROPERTY is sold, transferred, traded, or taken by an exercise of the power of eminent domain, in whole or in part, COE or COE successors or assigns, shall notify the DEPARTMENT of the proposed sale, transfer, trade or taking by sending written notice to: State of California, Department of Transportation, Legal Division, 1120 N Street, (MS57) Sacramento, CA 95814- -2- EEM-2003 (1101) 01/29/03 r 4. In the event of a default, sale, transfer, trade or taking, COE or COE successors or assigns shall reimburse the DEPARTMLN'1' an amount either equal to DEPARTMENT's funding participation of $400,000 for the purchase and/or improvements of the REAL PROPERTY or the DEPARTMENT's pro rata participation in the purchase of said REAL PROPERTY (determined to be 28.57% subsequent fair market value, including improvements, at the time of default sale, trade, transfer or taking, whichever is higher. COE or COE successors or assigns shall not be obligated to repay the DLPAR'1'MENT if the DEPARTMENT agrees in writing that COE or COL successors or assigns may utilize those proceeds for the preservation of real properly for equivalent environmental value conforming to the CONSERVATION PURPOSES when protected by similar conditions, to the extent applicable. 5. With the DEPARTMENT's prior written approval, COE or COE successors or assigns may modify or transfer the ownership, use, management and maintenance responsibilities established by the REAL PROPERTY restrictive covenants. Term 6. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until revoked or amended pursuant to the Amendment and Revocation provisions ol'this ADRC. Assignment 7. Without the prior written consent of the DEPARTMENT, this ADRC is not assignable in whole or in part by COE or COE successors or assigns. Amendment and Revocation 8. Conditional upon the DEPARTMENT receiving full lair market value return in the event of any reduction in the restrictions placed on the use of this REAL PROPERTY unless DEPARTMENT agrees in writing that COE or COE successors or assigns may utilize the value received for the preservation of real property for equivalent environmental value conforming to the CONVERSATION PURPOSES when protected by similar conditions, to the extent applicable, this ADRC and any amendments to it may be amended in any respect by the execution by the DEPARTMENT and COE or COE successors and assigns of any written instrument amending or revoking this ADRC. The amending or revoking instrument shall make appropriate reference to this ADRC, and its amendments and shall be signed by both parties thereto, acknowledged and recorded in the office of the County Recorder of the counties in which the property is located. Enforcement 9. Enforcement shall be by proceedings at law or in equity against any person or persons or party or parties violating or attempting to violate any covenant by either restraining violation or by the recovery of damages. -3- O1/29/03 Indemnification 10. Neither the DEPARTMENT nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by COE or COE successors or assigns under or in connection with any work, authority or jurisdiction delegated to COE or it's successors or assigns under this ADRC. It is understood and agreed that, pursuant to Govermnent Code Section 895.4, COE' or COE successors or assigns shall fully defend, indemnify and save harmless the DEPARTMENT and all of its officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 81 f1.8) occurring by reason of anything done or omitted to be done by COE or COE successors or assigns under or in connection with any work, authority orjurisdiction delegated to COE or COE successors or assigns under this ADRC. The DEPARTMENT reserves the right to represent itself in any litigation in which the DEPARTMENTinterests are at stake. Purpose of ADRC 11, This ADRC is solely for the purpose of protecting and maintaining the present and future restricted use or all of the REAL PROPERTY solely for the MITIGATION REQUIREMENTS and these enhancement tied to the preservation of the CONSERVATION PURPOSES. Severability 12. Invalidation of any one of these covenants by judgment or court order shall in no way affect any of the other provisions that shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereby execute this ADRC by their duly authorized officers as of the date set forth above and agree to be bound hereby: STATE OF CALIFORNIA DEPARTMENT OF TRANSPOR'1'A'TION By: (Signature) ,JCX,*(6 Ao C e' — District Right of Way Division Chief CITY OF ENCINITAS By: 4 p cant's Representative Signature) Kerry L. Miller, City Manager City of Encinitas Encinitas, CA 92024 (760)633-2615 -4- EEM-2003 (003) 01/29/03 • • EXHIBIT ADRC-A LEGAL DESCRIPTION OF REAL PROPERTY LEGAL DESCRIPTION TIIE LAND REFERREDTO HEREIN IS SITUATED IN THE STATE OF CALIFORMA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THE. FAST HALF OF LOT 7 OF THE NORTHWEST QUARTER OF THE SOUT'HEASI' QUARTER OF SECTION 34, TOWNSHIP 12 SOUTII, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN TIIE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, EXCEPTING TIIEREFROM THAT PORTION LYING WITHIN ROAD SURVEY NO.1796 TAKEN BY THE COUNTY OF SAN DIEGO BY FINAL ORDER OF CONDEMNATION RECORDED JANUARY 3, 1968 AS FILE NO.1570 OF OFFICIAL RECORDS, BEING A STRIP OF LAND 84 FEETWIDE, 42 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTER LINE: COMMENCING AT AN ANGLE POINT IN THE NORTHEASTERLY BOUNDARY OF LAND DESCRIBED IN DEED ToTHE STATE OF CALIFORNIA, RECORDED APRIL 6, 1965 AS FILE NO. 60313 OF OFFICIAL RECORDS IN THE OFFICE. OF THE COUNTY RECORDER IN SAID SAN DIEGO COUNTY, SAID ANGLE POINT BEING MARKED BY A 1 1/2 INCH PIPE'TAGGED "DIV.HWYS." BEING AT COORDINATES Y-335,887.14 FEET AND X-1, 680,010.03 FEET; THENCE ALONG BEARINGS AND DISTANCES BASED ON THE CALIF'ORNIA COORDINATE SYSTEM GRID ZONE V I AS FOLLOWS: SOUTH 28040'06" EAST, ALONG SAID NORTHEASTERLY BOUNDARY LINE AND THE PROLONGATION THEREOF, 90.00 FEET TO TIIE TRUE POINT OF BEGINNING, SAID POINT HAVING GRID COORDINATES N- 335,808.173 AND E-1,680,053.206 OF SAID GRID ZONE VI;THENCE NORTH 61019'54" EAST, 24.37 FEET TO THE BEGINNING OF A TANGENT CURVE TO TIIE LEFT HAVING A RADIUS OF 4850 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3"34'25", A DISTANCE OF 302.50 FEET; TIIENCE TANGENT TO SAID CURVE NORTII 57°45'29" FAST, 405.52 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1400 FEET, THENCE EASTERLY ALONG SAID CURVE THROUGH A CFNTRAL ANGLE OF 15013'25", A DISTANCE OF 371.98 FEET; THENCE TANGENT TO SAID CURVE NORTH 72"58'54" EAST, 418.15 FEET TO THE BEGINNING OF A TANGENT CURVE TO TITE RIGHT HAVING A RADIUS OF 1400 FEET; TIIENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18011'59", A DISTANCE, OF 444.70 FEET; THENCE. TANGENT TO SAID CURVE. SOUTH 88049'07" EAST, 1443.17 FEET TO T'HE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 1400 FEET; TIIENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12°35'05", A DISTANCE OF 307.50 FEET; THENCE 'FANGEN'I' 'FO SAID CURVE NORTH 78"35'48" EAST, 870.32 FEETTO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1700 FEET; SAID POINT BUNG F,NGINF.ER'S STATION 89+61.70 B.C. IN THE CENTER LINE OF ROAD SURVEY NO.1796-65 ON FILE IN THE. OFFICE OF THE COUNTY SURVEYOR IN SAID SAN DIEGO COUNTY AS SHOWN ON SHEET 4 OF SAID SURVEY; 'THENCE EASTERLY AND SOUTHEASTERLY ALONG SAID CURVE TIIROUGH A CENTRAL ANGLE OF 40°22'26", A DISTANCE OF 1197.92 FEET; TIIENCE TANGENT TO SAID CURVE SOUTTI 61°01'46," EAST, 1297.68 FEET TO THE POINT OF BEGINNING OF A TANGENT CURVE TO THE I,EFT HAVING A RADIUS OF 1500 FEET; SAID POINT BEING ENGINEER'S STATION 114+57.30 B.C. IN THE. CENTER LINE OF SAID ROAD SURVEY NO.1796-65; '1 HENCE SOU'1 HEAST'ERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 34011'14", A DISTANCE OF 895.02 FEET; TIIENCE TANGENT TO SAID CURVE NORTII 84°47'00" EAST, 689.81 FEET TO A POINT ON THE. CENTER LINE OF ROAD SURVEY NO.682, A PLAT OF WHICH IS ON FILE 1N SAID OFFICE OFTHE COUNTY ENGINEER, SAID POINT BEARING SOUTH 52002'49" EAST, 558.81 FEET FROM THE EASTERLY TERMINUS OF TIIE COMMON BOUNDARY LINE BETWEEN LOTS 7 AND 16 OF SECTION 35, TOWNSHIP 12 SOUTII, RANGE 4 WEST, SAID CENTER LINE POINT ALSO IIAVING GRID COORDINATES-, N- 335,770.646 AND E-1,688,300.279 OF ZONE VI. -5- EEM-2003 (003) 01129/O CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego OY� ,I,r 7� before me, Deborah Cervone, Notary Public personally appeared Personally known to me —OR-0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) istare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and U DEBORAH#CERVONEs that by his/her/their signature(s) on the NOTARYMPUBBLIC-C ORNIAQ instrument the person(s) or the entity sAN EXP.N COUNTY o upon behalf of which the person(s) acted COMM. EXP. NOV.29, 2005 P P f executed the instrument. WITNESS my hand and official seal. —4t � L=� L Signature of Notary Public ................... --------------------- OPTIONAL --- ---------------- ------------------------- Description of Attached Document Title or Type of Document: C �� C o � E t-\C( � S Document Date: Number of Pages rI 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of S 0 o On _ c_�_ rtb3 before me, u c4v 4 Name and Title of O6 w (e.g„-°Janyl Nptary Publ ) personally appeared�� Name(s) of Signer(s) R- A. POIJCEL Comnxa+lon s 1361425 3 i Notary Public - California S San DkW courtly? @*Cotnm.E*uwjun17,2W5 Kpersonally known to me U proved to me on the basis of satisfactory evidence to be the person( whose name(Sr is/arK subscribed to the within instrument and acknowledged to me that pd/she/tWy executed the same in big/her/tWir authorized capacity(iel), and that by )its/her/tWr signatureLs) on the instrument the personK, or the entity upon behalf of which the person(8f acted, executed the instrument. WI r1 d official seal. Place Notary Beal Above Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capaclty(les) Claimed by Signer Signer's Name: ❑ Individual LL Corporate officer—Title(s): _...__ Cl Partner —fl Limited IJ General fl Attorney in Fact LJ Trustee C7 Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHTTHl1MP RINT of SIGNER C 1097 Natian.�l Notnry Association - 9350 De solo Ave., P.U. Box 29g8 • Chatannnh, CA 91313 2402 Prod. No. 6W7 RowderCall Tall -Free 1-800-616-660 0 0 ADRC-Al "ORIGINAL EEM APPLICATION s4Aff Or C,AUFOR...A CAL816"PyA TRAwro"VATkop MReIO, mitsou ICES AOEM:•r ENVIRONMENTAL ENHANCEMENT AND MITIGATION PROGRAM APPLICATION (Enter Gram Propel fnA mralfon wrdar Secdon A and Trwupo=don Project Inlama'o" under Saedorr B.) SN reverse side for awbonal insuucdons- PROGRAM CATEGORY (cl+eck one category, orry, below) Rerreatior>£ Cj Highway Landscape Landspe and Urban Forestry Reso%m Lands A GRANT PROJECT (Name) AMOUNT OF GRANT REQUE51 a uu,uu� MULTIPLE HABITAT CONSERVATION WnmATED TOTAL PROJECT COSTS 1 PROGRAM C MHC P) (Gyd. DonsEOns, *•, e=kxfng Transc"-,X4on Prajeetl M ...r A oor er AM r taaencv --- Address — ZIP cock) GRANT PROJECT LOCATION k(WIL AGENCY ❑ STATE AGERGT Q FEDERAL AGE?= ❑ CITY OF ENCINITAS 500 SO. VULCAN AVENUE ENCINITAS, CA 92024 SE OF LA COSTA AVELSAXONY ROAD_ Newestcrm Sk w SAN DIEGO CITY OF ENCINITAS Comm Ilearad c*1 38th Grant Apomnrs jGjwweentWve Anauxtsed In Resole M [r+Ease "Wa o • •`"• •• •••• "- T KERRY L. MILLER C YMA QFR 7 0 6 - PwwnwEhdW-W-drJrM4-n0AV'WP'° � erwneufv�dnPnaKa>rt.'y GARY T. BARBE SENIOR P A BRIEF DESCRIPTION OF GRANT PROJECT (soaPO, 4 PwPO6e �' not 16 exR�ed TO ACQUIRE 17 ACRES OF PRIVATELY OWNED LAND WITHIN THE.MHCP FOCUSED PLANNING AREA CFPA) FOR THE PRESERVATION OF HABITAT IN PERPETUITY. ANTICIPATED CONSTRUCTION START AND 0OWLETION DATES: j r d O t: r-_L2Q01 2 n d ,qLLLU 0 2 ENVIRONMENTAL CLEARAw =FOR eRAKT PROJECT (dewekvm0os9d"and spAees} Type X Exmw mw Deeleaaron C" g I "Mgm Errriou hw+ect PAPS Stabu _n�QX SEC. 15 313 , N PrapniFs Ndt S4eMd Neese of Lead Age ! rre t be to Cr CTC halos If may NOTE: Fed B. RELATE•D TRANSPORTATION PROJECT 11 CITY OF CARLSBAD TFrO DiSWWI y Geuney LA COSTA/I-5 INT Locakm AUGMENTATION €.ENHANCEMENT 0 LA COSTA AYEtILU D m roses of Re4m d Traeupmu*m Ps FALL 1' CITY OF CARLSBA t� Mann at TraruportemOn AGe^�y rA LA COSTA AVE LA COSTA AVE. WIDENINGCFY 99/00) Maur eA AGA 'r1 C:PIti Ouaey PrpprarR for tieteeed Tmnsowmdo^ I I csrdy our sminknruGO^ rnns rW it edis prapet loan i^eA+Oir� rxrdusmid ar O P=wv +^fOmr Ord �M u � or�rwe�rs wed smodanwm is aeew+r snd put I Nero of ois k m $Wwd KERRY L. MILLER (Grsne M+p B t . as arowe an M 1eh71ix Dsm 11/17/00 Fe/r t 0 0 program Applkadon (continued) ASSURANCES Applk artt possesses leo authority to apply •for the grant and to finance. acquire. and construct the proper projeM and by formal action (e.g, a resOWWrt) the appficant's gaveming body authorized the filing of the application. including all understandings and assurances contained therein, and authorized ttte per son. identified as the official representative, of the applicant to act In -connection with the application and to provide such additional information as may be required. Applicant will manage and maintain any property accquued. developed. rehabroatsd, or restored with grant funds in the haure. W tt the granting agency's prior approval, the applicant or its successors in interest may transfer the management and maW tertartcO-responsibllities -in the property. If the property is not managed and ntaftTtained for the purposes stated in the project agreement. the state strap be reimbursed an amotatt at Least equal to the amotatt of the graft award trine of sale. or, ftr l the pro raft fair market value of the property. irtch+dfng improvements. Wfechev ;s higher. Applicant wtil give the states authorized representative access to and the right to eraunine all records. books. papas. or documw is related to the grant Appamt wiq work on to txojed to be cornrtKroed within and tt r the project a ~ receipt be carried Of notification from the state that Arndt have been approved to compi~ with reasonable MWM Appbm.i rrM c=Wiy where appkable with provisions of the CaidW is Errvirornrrar+b► aua61Y Act and ra vCa..ti�forrnia Relocalicn � Ad,te . aW MnY Odw sta. wxVOr kmal Utws. nd" vrbdlor ' eg~a& M• ' //l FtA C71M 11/17/00 Page 2 of 2 TABLE OF CONTENTS City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition APPLICATION SECTION PAGE • Environmental Enhancement and Mitigation Application Cover Letter • Environmental Enhancement and Mitigation Application • Assurances 1.0 Environmental Project Summary 1 2.0 Agency Eligibility 2.1 Authorizing Resolution to Apply for EEM Grant 2.2 Statement of Related Prior Experience 2 3.0 Related Transportation Project — Transportation Project Lead 5 Agency Statement 4.0 General Criteria 4.1 Increased Mitigation and Enhancement 4.2 Project Readiness 4.3 Other Contributions 5.0 Project Category Criteria: Resource Lands 5.1 Important Resource Values 5.2 Sustainability 5.3 Other Benefits and Community Participation I M 9 EXHIBITS City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition "A" - Statement of Project Consistency with Local, State, and/or Federal Plans "B"- Preliminary Project Cost Estimate "C"- Completion Schedule "D"- Project Location Map "E"- Project Site Photographs "F"- Vegetation and Sensitive Resources "G"- Endorsement ENVIRONMENTAL PROJECT SUMMARY City of Encinitas Multiple Habitat Conservation Program (MRCP) Habitat Acquisition The City of Encinitas is requesting $400,000 in Environmental Enhancement and Mitigation Program grant funding for the acquisition of 17 acres of privately owned land within the MHCP Focused Planning Area (FPA) for the preservation of habitat. The site is contiguous to the Batiquitos Lagoon and approximately 300 acres of existing biological open space within the City of Encinitas MHCP Focused Planning Area. The target acquisition site includes the following: • Encinitas: One parcel (APN 216-110-42) totaling 17 acres within the City of Encinitas, located approximately 0.75 miles east of Interstate 5, immediately south of La Costa Avenue and the Batiquitos Lagoon, and east. of Saxony Road. The property contains Diegan Coastal Sage Scrub, Southern Maritime Chaparral, Chamise Chaparral, and Non-native Grassland habitats. Several sensitive plant and animal species have been observed on the site including two bird species, the federally threatened Coastal California Gnatcatcher and the Southern Californis Rufous - Crowned Sparrow, and three plant species, the Western Dichondra, the Sea Dahlia, and the Ashy Spike -moss. The site is contiguous to the Batiquitos Lagoon and approximately 300 acres of preserved biological open space within the City of Encinitas FPA. The acquisition and preservation of the upland habitat as open space will enhance the overall aesthetics of La Costa Avenue and buffer the exiting residences above from the anticipated increase in automobile emissions and noise pollution due to the improvements of the related transportation project, La Costa Avenue. Additionally, the acquisition will enhance the sustainability of Batiquitos Lagoon and provide linkage with the existing 300 acres of open space within the City of Encinitas. Per the attached cover letter, Encinitas has provided assurances that the City will assume ownership and maintenance responsibilities for the property consistent with the MHCP policies in perpetuity, or until such time as a regional ownership and management structure is established for the MHCP jurisdictions. • 0 RESOLUTION NO.2000-86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ENCINITAS IN SUPPORT OF A REOURCES AGENCY 2001-2002 ENVIRONMENTAL ENHANCEMENT AND MITIGATION (EEM) PROGRAM GRANT APPLICATION PROGRAM GRANT FUNDING APPLICATION FOR PURCHASE OF HABITAT LAND WHEREAS, the Legislature of the State of California has enacted AB 471 (Chapter 106 of the Statutes of 1989), which is intended to provide $10 million annually for a period of 10 years for grant funds to local, state and federal agencies and nonprofit entities for projects to enhance and mitigate the environmental impacts of modified or new public transportation facilities; and WHEREAS, the Resources Agency has established the procedures and criteria for reviewing grant proposals and is required to submit to the California Transportation Commission a list of recommended projects from which the grant recipients will be selected; and WHEREAS, said procedures and criteria established by the Resources Agency require a resolution certifying the approval of application by the applicant's governing body before submission of said application to the State; and WHEREAS, the . applicant will comply with the assurances .contained in the application for Environmental Enhancement and Mitigation (EEM) Program Grunt funding; and WHEREAS, the City of Encinitas, if selected, will enter into an agreement with the State of California to carry out the environmental eubancement and mitigation project; and WHEREAS, the EEM funding would be used by the City of Encinitas to acquire habitat land(s) in close proximity to a major transportation corridor from willing sellers, consistent with MHCP goals. NOW, THEREFORE, IT IS RESOLVED, ORDERED, AND DETERMINED: SECTION 1: That the above recitals are all hue and correct. SECTION 2: That the City Council hereby supports the submittal of a Resources Agency 2001-2002 Environmental Enhancement and Mitigation (EEM) Program Grant funding application for the acquisition of 17 acres of privately owned land, within the MHCP Focused Planning Area (FPA) for habitat preservation, located approximately .75 miles east of Interstate 5, immediately south of La Costa Avenue and the Batiquitos Lagoon, and east of Saxony Road (APN 216-110-42). SECTION 3: That the City Council of the City of Encinitas will make adequate provisions for operation and maintenance of the project. SECTION 4. That the City Council of the City of Encinitas appoints the City Manager, or its designee, as agent of the City of Encinitas to conduct all negotiations, execute and submit all documents, including, but not limited to, applications, agreements, amendments, payment requests and so on, which maybe necessary for the completion of the aforementioned project. 0 9 PASSED, APPROVED, AND ADOPTED by the City Council of the City of Encinitas, California, at a regular meeting thereof held this the 15th day of November 2000, by the following vote to wit: AYES: Bond, Cameron, DuViVi,er, Guerin, Holz NAYS: None ABSENT; None ABSTAIN: None ATTEST: Deborah Cervone, City Clerk .y Chuck Duvivier, Mayor of the City of Encinitas, California 11 STATEMENT OF RELATED PRIOR EXPERIENCE City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition As a full -service public agency, the City of Encinitas' Community ]development, Community Services, Engineering, and Public Works Departments have overseen the planning, designing, and construction of numerous capital improvement projects. The City of Encinitas has been working cooperatively with six other participating North County cities, the California Department of Fish and Game (CDFG) and the U. S. Fish and Wildlife Service (USFWS) towards completion of the MHCP for over seven years. The goal of the MHCP is to develop a plan providing for the conservation of state and federally threatened and endangered species and other sensitive species and habitats within the study area. Given the fragmented habitat remaining in the incorporated North County area, opportunities to preserve critical linkages and large blocks of habitat are limited. The success of the program is dependent upon acquisition of key parcels currently under private ownership. Per the attached cover letter, the City of Encinitas has provided assurances that the City will assume ownership and maintenance responsibilities for the property consistent with the MIICP policies in perpetuity, or until such time as a regional ownership and management structure is established for the MHCP jurisdictions. 4 M 0 TO: Secretary for Resources 1416 Ninth St. Suite 1311 Sacramento, CA 96814 SUBJECT: ENVIRONMENTAL ENHANCEMENT & MITIGATION PROJECT The following information is provided regarding the construction of a new, transportation facility, or the enhancement of an existing transportation facility. in order to assist in the review of a proposed Environmental MULTIPLE HABITAT Ennh�aTncem oNSnd Mitigation program (EEMP) grant project entitled: VATION PROGRAM MHCP HABITAT AC UISITION Description of related transportation.project WIDENING AND IMPROVEMENTS TO LA COSTA AVE. AND -LA COSTA AVE/ I-5 INTERCHANGE FROM EXTG Tn a THROUGH LANES, INSTALL• RAMP METERS, AND WIDEN ON/OFF, RAMPS. Location of transportation project LA COSTA INTERSTATE 5 INTERCHANGE AND LA COSTA AVENUE TO EL CAMINO REAL Related transportation project construction start data F A L L 19 9 7 1 _ Does any part of the proposed environmental grant project provide the some environmental mitigation or enhancements required of the transportation project? (If "yeN6. please HABITAT ACQUISITION WAS NOT REQUIRED. 2. Is the proposed mitigation project compatible with the transportation iad ty, or does it rote OM with the transportation facil'dy. operation or safety"d (if incompatible, explain) �TH�E PROJECT IS COMPATIBLE WITH THE TRANSPORTATION FACILITY• 3. DOeS file proposed mitigation project limit or interfere with planned Or anticipated future improvements to the transportation facility? (If it interferes please THE) PROJECT DOES NOT LIMIT OR INTERFERE WITH COMPLETED IMPROVEMENTS. 4. Describe any concerns about the proposed environmental prOOd (e.g.. design, safety, tree density, other EEMP project previously ken to mitigate the impact of this NO�CO CERNS- p l ) 71/% Name of Transportation Agency CITY OF ENCINITAS 0 C7 GENERAL CRITERIA City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition Increased Mitigation and Enhancement Habitat Conservation —The City, wildlife agencies, and the biological consultants have identified this property as critical land for conservation for the following reasons: • Contains 17 acres of Diegan Coastal Sage Scrub, Southern Maritime Chaparral, Chamise Chaparral, and Non-native Grassland habitats. • occupied by several sensitive species, including the federally threatened California Gnatcatcher. • Provides a continuous linkage between the Batiquitos Lagoon and approximately 300 acres of existing, preserved biological open space within the City of Encinitas FPA. • Assures the 100% preservation of privately owned land that is "imminently threatened" by development. • Implements Local Coastal Program and General Plan policies encouraging the preservation, enhancement, and restoration of environmentally sensitive habitats. The proposed upland habitat acquisition will provide both local and regional benefits by enhancing the environmental quality and attractiveness of the related transportation project as well as reinforcing the scenic beauty of San Diego County's north coastal area. The related transportation involves widening and improvements the existing La Costa Avenue (from Pireaus Street to 0 Camino Real) and the La Costa Avenue/Interstate-5 (I- 5) overcrossing from 2 to 4 through lanes, widening the approaches and ramps, installing ramp meters, and providing auxiliary freeway lands for northbound and southbound exit ramps. A Park and Ride Facility is located north of La Costa Avenue and cast of the northbound on -ramp. The majority of the La Costa Avenue/I-5 Interchange, including the Park and Ride, is located in the City of Carlsbad. Portions of the freeway and ramps south of the overcrossing are located in the City of Encinitas. The improvements were necessary to reflect the increased traffic volumes experienced on both La Costa Avenue and I-5. Based on the San Diego Association of Governments' (SANDAG) Series 7 Forecast, traffic volumes were projected to increase along La Costa Avenue from 11,820 ADT, west of I-5, and 28,320 ADT, east of I-5, in 1988 to 28,000 ADT and 40,000 in 2010 respectively. The acquisition goes beyond being a simple enhancement measure to the related transportation project. Not only has La Costa Avenue been designed to enhance traffic flow, it encourages public access by providing pedestrian and bicyclists with recreation amenities such as the North Shore Hiking Trail that meanders around Batiquitos Lagoon and the City of Encinitas' Recreational Trails Master Plan. Also, The acquisition project will enhance the improvements made to La Costa Avenue and the 1-5 Interchange more effectively than the standard sidewalk or grass parkways typically constructed with normal transportation improvements. The acquisition is clearly the most appropriate degree of mitigation over and above that required under CEQA for the related transportation project, the improvements completed to La Costa Avenue and the I-5 Interchange. Acquisition of the site signifies the long term concepts of community character, sustainability, enhanced air quality, aesthetics, and acoustics as it fulfills an urgent need to provide a continues linkage between the approximately 300 acres of preserved biological open space within Encinitas and the Batiquitos Lagoon watershed including the importance of the project to the region in light of the MHCP. Additionally, acquisition ensures a continuous scenic corridor to another scenic roadway, Interstate 5 and ultimately Coast Highway 101 that is also recognized as a local Scenic Highway. The City of Encinitas has been working cooperatively with six other participating North County cities, the California Department of Fish and Game (CDFG) and the U. S. Fish and Wildlife Service (USFWS) towards completion of the MHCP for over seven years. The goal of the MHCP is to develop a plan providing for the conservation of state and federally threatened and endangered species and other sensitive species and habitats within the study area. Given the fragmented habitat remaining in the incorporated North County area, opportunities to preserve critical linkages and large blocks of habitat are limited. The success of the program is dependent upon acquisition of key parcels currently under private ownership. The MHCP cities have identified a list of target acquisition sites for conservation if funding becomes available. Project Readiness The La Costa Avenue Widening Project and La Costa/1-5 Interchange began construction in the Fall of 1997 and was completed in the Summer of 1999. The related transportation project was locally funded by the City of Carlsbad through an assessment district evidenced by City of Carlsbad City Council Resolution Nos. 9278 and 9559 and received sales tax funds made available through TransNet, a San Diego County Voter Approved Proposition. The La Costa Avenue Widening Project and I-5 Interchange Improvements was highly prioritized in Carlsbad's Capital Improvement Program FY 97/98 and FY 99/00. Additionally, the project was included in the 1994 Regional Transportation Improvement Plan (RTIP). The City of Carlsbad also applied for matching funds through State and Local Transportation Partnership Program funding (SLTPP) and other applicable funding sources. The EEM grant will not be used for right-of-way acquisition. The proposed acquisition will not require any additional permits. The related transportation project was approved by the California Coastal Commission on February 9, 1995. As the City of Encinitas has an adopted Local Coastal Program, the authority for issuing coastal development permits within the city's coastal zone is the responsibility of the City of Encinitas. The proposed upland habitat acquisition does not meet the definition of coastal development, as defined in Chapter 30.04 of the City's Zoning Ordinance, and Sections 30106 and 301610(d) of the Public Resources Code (Coastal Act). Therefore, a coastal development permit is not required to comply with the City of Encinitas Local Coastal Program. If acquired, the property would be preserved in perpetuity for open sprite and habitat conservation as part of a regional preserve system. Given the sites' very high visibility along two major transportation corridors (I-5 and La Costa Avenue) and from Batiquitos Lagoon, the open space benefits would be realized by the occupants of the estimated 201,000 vehicles traveling along these corridors each day. To the extent that the acquisition supports the larger habitat conservation efforts currently undertaken by the MHCP participants, property owners within the City will benefit by the anticipated approval of the local MHCP Subarea Plans. Finally, the proposed acquisition implements the goals established by the state and federal wildlife agencies and the MHCP cities for the protection of sensitive species and habitats. Preservation of the property is also consistent with the City's Local Coastal Program and General Plan goals contained in the Conservation and Open Space and Resource Management Elements, which encourage the preservation of open space, and avoidance of impacts to sensitive habitat types and steep slopes. Additionally, the acquisition would implement the Growth Management goals of the SANDAG Draft 2020 Regional Transportation Plan. The SANDAG Regional Growth Management Strategy (REGION2020) encourages the preservation of natural habitats and open spaces through land use distribution patterns that discourage sprawl and allow increased densities in established urban areas in order to reduce traffic congestion and preserve sensitive lands. Other Contributions Acquisition and conservation of the property would be highly cost-effective. The value of the site is estimated at $1,400,000. Preliminary negotiations are underway with the property owner. The "product" is the City's acquisition of 17 acres of privately owned land (in fee title or by conservation easement) to be purchased at fair market value from the property owner, a willing seller. The property would be preserved in perpetuity as an open space and conservation area consistent with MRCP policies. The anticipated schedule for completion (i.e. acquisition) is the 2nd quarter of 2002. • El PROJECT CATEGORY CRITERIA: RESOURCE LANDS City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition Important Resource Values Land Use/Environmental Compatibility and AeslheticlScenic Values - The acquisition of 17 acres of upland habitat land to be preserved as permanent open space is entirely consistent with the City's local land use, air quality, and energy conservation goals. The property contains sensitive upland habitat types and is occupied by several sensitive species. Acquisition of the site would provide a continuous scenic and biological linkage between the Batiquitos Lagoon and approximately 300 acres of existing scenic and biological open space within the City of Encinitas FPA, which includes the City's Indian Head Canyon natural open space park and the County of San Diego's Magdalena Ecke Park. Preservation of the property would meet the goal of the MHCP, which is to preserve viable populations of key sensitive plant and animal species and their habitats, while accommodating continued economic development and ensuring a higher quality of life for residents in northern San Diego County. Preservation of the property would also ensure important scenic and biological linkages to the Batiquitos Lagoon. Protection of Scenic Viewsheds -The site is approximately 0.75 miles east of Interstate 5, and is immediately south of La Costa Avenue and the Batiquitos Lagoon. The property is highly visible from La Costa Avenue and the 35,000 vehicles traveling along this roadway each day, as well as by the 166,000 vehicles traveling on Interstate 5 each day. The site is "imminently threatened" by development and acquisition of the site would ensure the preservation of the scenic viewshed. The site has a very high scenic and aesthetic resource value and acquisition of the property would preserve a scenic viewshed that is viewed by over 201,000 vehicles a day (1998 estimate). Sustainability Batiquitos Lagoon is located on the coast about 30 miles north of San Diego and is just north of the City of Encinitas. The Lagoon is bordered by the ocean on the west, steep hills on the south, gentle slopes to the north, and, on the eastern end, San Marcos Creek, the connection between the Lagoon and most of its drainage basin (or "watershed") further east. The lagoon is located in the city of Carlsbad just north of the City of Encinitas. Carlsbad Boulevard (Coast Highway 101) crosses the westernmost end of the lagoon at the lagoon opening ("mouth") to the ocean. A steep coastal ridge forms the southern bank of the lagoon, with La Costa Avenue on a narrow track between the lagoon and the steep slopes. The northern banks rise gently from the shore and are now covered with eucalyptus trees that buffer and separate the lagoon from a large development and a golf course. El Camino Real runs north along the easternmost end of the lagoon. 9 Batiquitos Lagoon consists of 610 acres with a drainage basin of about 30,000 acres. The watershed basin includes the cities of Carlsbad, San Marcos and Encinitas, with its primary freshwater tributaries being San Marcos Creek from the east and Encinitas Creek which flows north along Green Valley, entering the lagoon under El Camino Real and La Costa Avenue, respectively. The required environmental studies of biology, cultural, noise, and visual assessments were performed to facilitate improvements to La Costa Avenue. The transportation project was Categorically Exempt per CEQA. However, the City of Carlsbad prepared a Negative Declaration for processing under CEQA which was finalized in August of 1994. In summary, no mitigation measures were required because La Costa Avenue was widened primarily to the south. However, potential indirect impacts were expected to occur to adjacent off -site habitats due to the project's proximity to Batiquitos Lagoon. All wetland impacts, not associated with the lagoon, were mitigated with salt marsh vegetation at a minimum 4:1 mitigation ratio. Although all work was planned to be within the City of Carlsbad's public right of way, protective fencing delineating construction limits around wetland and sensitive habitat areas were clearly staked to avert encroachment into the adjacent sensitive habitats to the north and south of the La Costa Avenue. The fencing remained until construction was fully completed including the repaving and striping of La Costa Avenue. No pedestrian and vehicle traffic was allowed north of the fence in the lagoon area or near any watercourse that drains to the lagoon. Coastal Sage Scrub (CSS) was identified on the bluffs along the south side of La Costa Avenue, adjacent to the construction site. Two pairs of California Gnatcatchers were observed within the CSS. Subsequently, in addition to the aforementioned construction limits fencing, mitigation included that construction work within 300 feet of the CSS be preformed from August 15 through February 15 to account for the California Gnatcatcher breeding season. The acquisition goes beyond being a simple enhancement measure to the related transportation project as the proposed acquisition site contains 17 acres of Diegan Coastal Sage Scrub, Southern Maritime Chaparral, Chamise Chaparral, and Non- native Grassland habitats and several sensitive species, including the federally threatened California Gnatcatcher. Not only has La Costa Avenue 'been designed to enhance traffic flow, it encourages public access by providing pedestrian and bicyclists with recreation amenities such as the North Shore Hiking Trail that meanders around Batiquitos Lagoon and the City of Encinitas' Recreational Trails Master Plan. The City of Encinitas has been working cooperatively with six other participating North County cities, the California Department of Fish and Game (CDFG) and the U. S. Fish and Wildlife Service (USF WS) towards completion of the MHCP for over seven years. The goal of the MHCP is to develop a plan providing for the conservation of state and federally threatened and endangered species and other sensitive species and habitats within the study area. Given the fragmented habitat remaining in the incorporated North County area, opportunities to preserve critical linkages• and large blocks of habitat are limited. The success of the program is dependent upon acquisition of key parcels currently under private ownership. The MHCP cities have identified a list of target acquisition sites for conservation if funding becomes available. Other Benefits and Community Partici ation The site is approximately 0.75 miles east of Interstate 5, and is immediately south of La Costa Avenue and the Batiquitos Lagoon. The property is highly visible from La Costa Avenue and the 35,000 vehicles traveling along this roadway each day, as well as by the 166,000 vehicles traveling on Interstate 5 each day. For motorists, the acquisition will offer a continuous, picturesque traveling connection to the coast. As part of the related transportation project, the proposed acquisition also offers other direct benefits. The acquisition is a crucial link between Batiquitos Lagoon and the approximately 300 acres of biological open space within the City of Encinitas of which 179 acres are situated within .the Encinitas Ranch Specific Plan. Encinitas Ranch is located just off of Interstate 5 and just south of La Costa Avenue. The acquisition will contribute to the 179 acres of open space within the Encinitas Ranch including an aesthetically inviting visual corridor to and from the developments adjacent to and above the project site. Acquisition of upland habitat to be preserved as open space promotes the natural environment and community signature associated with Batiquitos and even more so, the City of Encinitas' floral legacy. Subsequently, the economic vitality of the area and desirable home property values will be indirectly enhanced and promoted. In addition to the aforementioned economic benefits, the acquisition encourages public use. It fulfills a scenic recreation need for pedestrians by incorporating a trail through the project site. A soft surface trail such as decomposed granite is proposed to be conceptually aligned through the project site and allow the enjoyment of panoramic views of Batiquitos Lagoon and the Pacific Ocean. The City of Encinitas is in the final stages of completing a Recreational Trails Master Plan. The Recreational Trails Master Plan (RTMP) identifies the proposed location of recreational trails throughout the city and establishes trail improvement and maintenance standards. The RTMP consists of text outlining trail. improvement, maintenance, and phasing standards and a map showing the physical location of existing and proposed trails. The master plan provides city staff, property owners, residents, and developers with important information about the proposed location and designation of trails throughout the city. Within Carlsbad, starting from the permanent visitor center where color brochures and trail guides are available, a nature trail extends around most of the lagoon which enjoys widespread public, private, and agency support. Concrete benches, inlaid with native stone to represent local wildlife, are located throughout the existing lagoon trail to provide a place to sit and enjoy the view. Local elementary students laid the mosaics. Additionally, there are plans to run the present North Shore Hiking trail under Interstate 5 to create a link to the ocean. Additional interpretive signage at the mouth of the lagoon and the creation of scenic overlooks at key locations around the lagoon perimeter are planned. E Regarding sustainability and survivability of the project, if acquired, the City of Encinitas has provided assurances that the City will assume ownership and maintenance responsibilities for the property consistent with the MHCP policies in perpetuity, or until such time as a regional ownership and management structure is established for the MHCP jurisdictions. Overall, acquisition of the site would provide a continuous scenic and biological linkage between the Batiquitos Lagoon and approximately' 300 acres of existing scenic and biological open space within the City of Encinitas FPA, which includes the City's Indian Head Canyon natural open space park and the County of San Diego's Magdalena Ecke Park. The site is "imminently threatened" by development and acquisition of the site would ensure the preservation of the scenic viewshed and habitat linkage. City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition EXHIBIT "A" STATEMENT OF PROJECT CONSISTENCY WITH LOCAL, STATE, AND FEDERAL PLANS The proposed habitat acquisition implements the goals established by the state and federal wildlife agencies and the MRCP cities for the protection of sensitive species and habitats. Preservation of the property is also consistent with the City's Local Coastal Program and General Plan goals contained in the Conservation and Open Space and Resource Management Elements, which encourage the preservation of open space, and avoidance of impacts to sensitive habitat types and steep slopes. If acquired, the City of Fncinitas has provided assurances that the City will assume ownership and maintenance responsibilities for the property consistent with the MHCP policies in perpetuity, or until such time as a regional ownership and management structure is established for the MHCP jurisdictions. City of Encinitas Multiple Habitat Conservation Program (MRCP) Habitat Acquisition EXHIBIT "B" PRELIMINARY PROJECT COST ESTIMATE EEM Grant Request $400,000 City of Encinitas Local Match $1,000,000 Total Acquisition Cost $1,400,000 The value of the site is estimated at $1,400,000. Preliminary discussions with the property owner have taken place and the City is working with a "willing seller." EXHIBIT "C" COMPLETION SCHEDULE Proposed Schedule: • Start Acquisition • Project Completion of Acquisition Quarter and Year 3'd Q 2001 2nd Q 2002 City of Encinitas Multiple Habitat Conservation Program (MHCP) Habitat Acquisition EXHIBIT "Q" PROJECT LOCATION MAP 15 -- cc, IUS�urrl pmJli fill. Faun u �1 nm -IL . RIGHT OF ENTRY/INDEMNITY AGREEMENT THIS AGREEMENT, made and entered into this it day of 2002, by and between the City of Encinitas, State of California, a municipal corporation (hereinafter "City") and Robert H. Barelmann and Margaret L: Barelmann (hereinafter collectively "Barelmanns".) WHEREAS, Barelmanns themselves along with their representatives, employees, agents and/or consultants desire to enter onto and have access upon that certain real property, more particularly described as Assessor's Parcel No. 254-270-22 (hereinafter "the Property"), for the purpose of inspecting the Property prior to its conveyance by City to Barelmanns; WHEREAS, this Agreement between the parties is necessary to allow such entry and access onto the Property during regular business hours to conduct studies, inspections and investigations and to protect City from liability associated with such entry and access; and WHEREAS, this Agreement is necessary to allow Barelmanns to conduct such studies, inspections and entry and access onto the Property in order to complete the conveyance of the Property from City to Barelmanns. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: In consideration of City allowing Barelmanns entry and access onto the Property during regular business hours (8:00 a.m. through 5:00 p.m., Monday through Friday) and as described herein, Barelmanns at all times shall defend, indemnify, protect and save City and any and all of their elected officials, agents, officers, employees, heirs, successors and assigns, harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgements, civil fines and penalties of any nature whatsoever in regard to or resulting from the Barelmanns' activities on the Property and the activities of Barelmanns' agents, employees, invitees, consultants and licensees prior to the conveyance of the Property including, but not limited to, expenses incurred in legal actions, attorneys' fees and court costs, death, injury, or damage that may be caused directly or indirectly by: a. Any unsafe or defective . condition in or on the Property; except, any known hazard of which City has not notified Barelmanns, their agents and/or representatives, at least twenty-four (24) hours prior to beginning of such entry; b. Any activity conducted by the Barelmanns and/or their employees, agents, licensees, invitees or consultants on the Property prior to the conveyance of the Property by the City to the Barelmanns; or Any act, omission or negligence on the part of the Barelmanns, their employees, agents, invitees or licensees on the Property prior to the conveyance of the Property by the City. 2. Prior to each entry upon the Property by Barelmanns, their agents, employees or consultants, Barelmanns shall give twenty-four (24) ' hours telephonic notice to City by contacting City Manager or his or her designee. Upon each entry onto the Property by Barelmanns, their agents, employees or consultants, such parties shall inform the City Manager of the actual location(s), upon the Property where they shall be doing inspections, investigations and/or studies. 3. This Agreement may be executed in counterparts, and all such counterparts shall constitute an agreement which shall be binding upon all parties hereto. IN WITNESS THEREOF, the Parties have caused this Agreement to be signed and executed on their respective behalves. CITY OF ENCINITAS By Its City Manager APP VED AS IL Ama Sabine, City Attorney By Robert H. Barelmann ByIN2� Mai aret L. Barelmann RIGHT OF ENTRY/INDEMNITY AGREEMENT THIS AGREEMENT, made and entered into this / j ''" day of 2002, by and between the City of Encinitas, State of California, a municipal corporation (hereinafter "City") and Robert H. Barelmann and Margaret L. Barelmann (hereinafter collectively "Barelmanns".) . WHEREAS, City themselves along with their representatives, employees, agents and/or consultants desire to enter onto and have access upon that certain real property, more particularly described as Assessor's Parcel No. 216-110-42 (hereinafter "the Property"), for the purpose of inspecting the Property prior to its conveyance by Barelmanns to City; WHEREAS, this Agreement between the parties is necessary to allow such entry and access onto the Property during regular business hours to conduct studies, inspections and investigations and to protect Barelmanns from liability associated with such entry and access; and WHEREAS, this Agreement is necessary to allow City to conduct such studies, inspections and entry and access onto the Property in order to complete the conveyance of the Property from Barelmanns to City. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. In consideration of Barelmanns allowing City entry and access onto the Property during regular business hours (8:00 a.m. through 5:00 p.m., Monday through Friday) and as described herein, City at all times shall defend, indemnify, protect and save Barelmanns and any and all of their agents, officers, employees, heirs, successors and assigns, harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgements, civil fines and penalties of any nature whatsoever in regard to or resulting from the City's activities on the Property and the activities of City's agents, employees, invitees, consultants and licensees prior to the conveyance of the Property including, but not limited to, expenses incurred in legal actions, attorneys' fees and court costs, death, injury, or damage that may be caused directly or indirectly by: a. Any unsafe or defective condition in or on the Property; except, any known hazard of which Barelmanns has not notified City, their agents and/or representatives, at least twenty-four (24) hours prior to beginning of such entry; b. Any activity conducted by the City and/or their employees, agents, licensees, invitees or consultants on the Property prior to the conveyance of the Property by the Barelmanns to the City; or C. Any act, omission or negligence on the part of the City, their employees, agents, invitees or licensees on the Property prior to the conveyance of the Property by the Barelmanns. 2. Prior to each entry upon the Property by City, their agents, employees or consultants, City shall give twenty-four (24) hours telephonic notice to Barelmanns by contacting Robert H. Barelmann or his designee. Upon each entry onto the Property by City, their agents, employees or consultants, such parties shall inform Robert H. Barelmann of the actual location(s) upon the Property where they shall be doing inspections, investigations and/or studies. 3. This Agreement may be executed in counterparts, and all such counterparts shall constitute an agreement which shall be binding upon all parties hereto. IN WITNESS THEREOF, the Parties have caused this Agreement to be signed and executed on their respective behalves. CITY OF ENCINI AS By 7 Its City Manager APPROkDASTO FO 7Glennaine, City Attorney By RobertH. Barelmann By Mar et L. Barelmann