No Recording Information (8) Linda Bartz & Associates
Attorneys At Law ', Condemnation Law Center
1010 Second Avenue, Suite 1010
San Diego, CA 92101-4904
Real Estate ', Eminent Domain · Civil Litigation · Public Agencies · Redevelopment
Tel [6191 237-5137 * Fax (619) 237-5110
December 9,2002
Kathy Greene. Deputy rd iry Clerk
City of Encinitas
505 S. Vulcan Avenue
Eneinitas, CA 92024
Re: Quail Gardens Drive Extension Project/Brown
Enclosed please find:: Original Acquisition of Real Property Agreement for William & Cathleen
Bi'owrL
For your review.
XX Per your request.
For your'information and files.
Via Certified Mail, return receipt requested.
Please sign and return. Retain copy for your files.
Other:
If you require additional information, please contact our oftice,
Sincerely yours,
r._ris Boggis ~
Paralegal for Linda D. Bartz
Linda D, Bartz
Of Counsel:
Dennis L. Shields
William R; Polk
S:~LB&A~Eneinitas Oen~ral~Quail Oardons\Brov~Gg~nc tr~s Itt tc original acquisition agmt.wDd
First'American Titi~q3rder No, 1250993-15
Assessor Parc~ Number: 256-233-16
ACQUISITION OF REAL PROPERTY AGRF~IVIENT
_ ,. THIS ACQUISITION OF REAL PROPERTY AGREEMENT ("Agreement") is entered into this
] [/today of ..Qp-~t~ ~r", 2001, by and b~tw~n the CITY OF ENCINITAS, a municipal corporation
("City"), end William Joseph and Cathleen Ann Brown, Trustees of the Brown Revocable Intervivos Trust
dated March 11, 1999 (collectively "Grantor"), (the "Parties") for acquisition by City of ceChain real
prop~y for the Quail Gardens Drive Extension Project ("Project").
WHEREAS, City desires to acquire a portion of Grantor's fight, interest, and rifle in and to
Grantor's real propexty as h~reinaRer described;
WHEREAS, Grantor desires to sell in lien of condemnation to City said real property; end
WHE~AS, an Easemem Deed concerning a portion of Grantor's real property to be acquired by
City shall b~ executed and delivered to City's authorized agent, and a copy of said deed with corresponding
legal description ("Property") is attached to this Agreement as Exhibit 1.
NOW THEREFORE, the Parties agree as follows:
1. AGREEMENT TO SELL AND PURCHASE
Grantor agrees to sell to City, and City agrees to purchase from Grantor, upon the terms and for
the consideration set forth in this Agreement, a slope and drainage easement in and to the Property more
particularly described in the Easement Deed which is attached hereto as Exhibit 1, and incorporated herein
by this reference.
2. PURCHASE PRICE
The total purchase price, payable in cash through escrow (less any deductions requested by Grantor
provided for elsewhere in this Agreement), shall be the sum of FIVE THOUSAND DOLLARS AND NO
CENTS ($5,000.00) ("Purchase Price"). Grantor hereby acknowledges that said purchase price is a total
settlement which includes any and all claims and/or damages of every nature and kind Grantor may be
entitled to by reason of the acquisition by City for the Project, including but not limited to, value of real
property rights, value of the Property and improvements, if any, and/or precondemnation or inverse
condemnation damages, interest, and all costs and fees, including all attorney and expert fees, incurred in
connection with the acquisition of the Property.
Grantor hereby waives and releases City, City Council, and their officers, employees, agents, and
representatives from and against any and all claims, actions, demands and suits relating to the purchase
price, acquisition of the Property and/or the Project. This release extends to all such claims which now exist
or which may arise in the future, whether or not such claims are known to Grantor, and Grantor hereby
expressly waives rights under California Civil code section 1542 which provides as follows:
Aoqul$i%lon of Real Property Agreement.wpd 1
"A gene*al release does not ex~end to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Full paymem under this Agreement shall he made alter City obtains a policy of title insurance
showing vested in City.
3. QUITCLAIM DEED
In consideration of the grant of easement, City will cause to be recorded concorrenfly at the close
of escrow the Quitclaim Deed attached hereto as Exhibit 2 concerning the Irrevocable Offer of Dedication
for Public Highway Purposes,
4. ESCROW AND TITLE INSURANCE
City agrees to open an escrow in accordance with this Agreement at First American Title Insurance
Company located at 411 Ivy Street, San Diego, California, City agrees to pay all usual fees, charges and
costs which arise in the escrow.
Escrow instructions shall provide for dosing of escrow within thirty (30) days of execution of this
Agreement by all Parties, or as soon thereafter as possible.
When Escrow Holder holds for City the Easement Deed in favor of City executed and
acknowledged by Grantor coveting the Property, Escrow Holder shall cause to be issued and delivered to
City, as of the Closing Date, a CLTA standard coverage policy of title insurance ("Title Policy"), issued by
First American Title Insurance Company, with liability in the amount of the purchase price, coveting the
Property and showing title vesting in City free of encumbrances, except:
a) All nondelinquent general and special real property taxes and for the currem fiscal
year;
b) The standard printed exceptions and exclusions contained in the CLTA form
policy;
c) All public or quasi-public flights of way of record; and
d) Any exceptions consented to by City, including without limitation, any exceptions
arising by reason of City's possession of or entry on the Property.
City agrees to pay the premium charged therefor.
INDEMNRqCATION FOR UNRECORDED INTERESTS
Upon title vesting in City, Grantor warrants that there are no unrecorded encumbrances (including
Acquisition of Real Property Agreement.wp~ 2
but not limited to liens, leases, easements) on all or any portion of the Property, and Gramor agrees to hold
City, City Council, their officers, employees, agents, and representatives harmless, defend, and reimburse
them for any and all of thcir losses and expenses, including court costs and attorney's fees, oc, casioned by
reason of any such enoumbrance of said Property.
6. ACQUISITION BY STIPULATED JUDGMENT IN LIEU OF DEED
In the event Grantor is unable to deliver title in a reasonabie time in accordance with the terms of
this Agreement, the City may pursue an action in eminent domain for acquisition of the Pwperty, Grantor
agrees to waive all claims and defenses to such action and agrees that this Agreement shall constitute a
stipulation which may be filed in such action as final conclusive evidence of public use, necessity and just
compensation for the aCxluisition, including all of the items provided in Chapter 9, Title 7 of the California
Code of Civil Procedure commencing with Section 1230.010. Grantor hereby consents to such stipulated
judgment and/or dismissal ofsoch eminent domain action and waives any and all claim to money that may
be deposited in the Superior Court or with the State Treasurer in connection with such action upon proof
of deposit of the Purchase Price into escrow.
7. CONVEYANCE OF II~tl~REST
Grantor agrees to convey by Easement Deed to City rifle in and to said Property as described in
Section 1 of this Agreement.
HAZARDOUS MATERIALS
It is understood that the Property does not appear to contain hazardous materials or waste, including
but not limited to, gesoline/oil storage tanks, or pesticide storage tanks, or any contaminant. However,
should hazardous materials or waste be found to exist on the Property, the City may exercise its fight under
existing law to bring an action, if necessary, to recover clean-up costs from Grantor or any others who are
ultimately determined to have responsibility for said hazardous materials or waste on the Property. Grantor
warrants that he has no knowledge of any hazardous materials/waste on the Property and that Grantor has
not used any hazardous materials or disposed of hazardous waste on the Property, and that there are no
underground tanks on the Property to the best of Grantor's knowledge,
9. PERMISSION TO ENTER PROPERTY
Grantor hereby grants to City, its agents, employees, representatives and/or invitees, successors or
assigns effective immediately upon the date this Agreement is executed by Grantor, a right of entry over,
under, along, across and through the Property for all purposes, including grading and construction, deemed
by the City to be necessary or convenient for the Project, or related appurtenances, and agrees that the
amount shown in Section 2 herein includes, but is not limited to, full payment for such entry rights,
including damages, if any, from said date. City agrees to indemnify, hold harmless and defend Grantor for
any and all losses and expenses, including court costs and reasonable attorney's fees, occasioned by any
such entry.
10. UTILITY WORK TO BE PERFORMED BY CITY
City shall at its sole cost and expense bring wet utility connections (sewer and domestic water)
Avqui$±tion of Real Property ;~reement.wpd 3
stubbed out to the Property line at a location to be determined at City's sole discretion.
City shall at the reeuest of Grantor bring dry utility connections (telephone, cable T.V., electric and
gas) stubbed out to the Property line at a ioc~tion to be determined at City's sole discretion. Dry utilities
shall be paid for by Grantor by a deduction from the Purchase Price in the amount of THREE THOUSAND
TWO HUNDRED TWENTY FIVE DOLLARS AND NO CENTS ($3,225.00).
Grantor acknowledges that Grantor is responsible for all connections, permits, fees, and ail related
work on the subject property in order to use such utilities and services.
11. NIF~IATION OF DISPUTES
If any dispute arises out of this Agreement, or the breach thereof, and if the dispute cannot be settled
through negotiation, the Parties agree before resorting to legal action, to attempt in 8ood faith to settle the
dispute through mediation before a mediator to be agreed upon by the Parties. The Parties agree to share
equally the cost of mediation.
12. ATTORNEYS' FEES
In the ewnt any legal action is brought to enforce the terms of this Agreement or to recover
damages for its breach, the prevailing party shall be entitled to court costs and reasonable attorneys' fees
therein as well as those incurred in enforcing any judgment pertaining thereto.
13. EMINENT DOMAIN
It is mutually agreed that this Agreement is executed under the threat or imminence of
condemnation pursuant to the power of eminent domain as those terms are used in the United States
Internal Revenue Code.
14. NOTICES
Any notices or documents to be mailed or delivered shall he addressed to or delivered as follows:
grtlliam Joseph Brown & Cathleen Ann Brown, Trustees
2255 La Quinta Street
Chico, CA 95928
City:
City of Encinitas
505 S. Vulcan Avenue
Encinitas, CA 92024
Attn: Director of Engineering Services
With copy to:
Linda D. Bartz, Esq.
L'mda Bartz & Associates
1010 Second Avenue, Suite 1010
San Diego, CA 921014904
Acquisition of Real Property AOreement.wpd 4
15, BINDING ON HEIRS AND ASSIGNS
The teom, conditions, covenants and agreements set forth herein shall apply end bind the heirs, ·
executors, administrators, successors and assigus of the Parties hereto.
16. ENTIRE AGREEMENT
This Agreement comains the entire agreement between the Patios, end neither pa~y relies upon
any warranty, promi~ representation, or agreement not contained in writing herein.
17. SURVIVABILITY
The Pa~ties acknowledge and agree that terms end conditions of the Agree~nent shall survive the
close of escrow end remain in f~ll force and effect.
18. TIME OF THE ESSENCE
Time is of the essence and each party shall promptly execute all documents necessary to efl~ctunte
the intent herein and shall perform in strict accordance with each of the hereinabove provisions.
19. CIVIL COMPROMISE
It is mutually agreed that the resulting real estate transaction pursuant to this Agreement is a civil
compromise of dispute claims between the Parties.
20. AUTHORITY TO BIND
The PaRies warrant each to the other that the person whose siguatures appear on its behalf below
h~s the authority to bind such pa~y to the ~rms of this Agreement, and that by entering into this
Agreement, such party is not thereby in breach of any other agreement or contract.
INTERPRETATION OF AGREEMENT
In the event of any dispute arising concerning the interpretation of this Agreement or the. terms
thereof, any ambiguities which may be found herein shall be interpreted according to the fair end reasonable
meaning of the language used considering the stated intentions of the Parties. Any rule of construction,
to th~ ~ect that ambiguities ~re to be resolved against the dra~g pa~y, shall not apply in the
interpretation of this Agreement.
22. NO COMMISSION
Neither pan'y h.. engaged tho services of a Realtor, agent or broker and therefore no sales
commission(s) ar~ applicable to the transaction which is the subject of this AgreemenL
23. RIGHT TO INDEPENDENT LEGAL ADVICE
R is hereby expressly understood and agreed that Grantor, and each of them, Ms individually end
Acquisition of Real Property Agreement.w~d 5
independently made their own investigation of the facts and law relating to this transaction and fi4~ree~ent.
Grantor, and each of them, acknowledge that they have carefully read this Agreemem in its entirety, that
they freely and of their own volition enter into this Agreement. Grantor, and each of them, acknowledge
that they have the right to obtain independent legal advice and that Attorney Linda D. Bartz has represented
the City and haz not provided advice, legal or otherwise, to Grantor, or any of them.
24. COUNTERPARTS
This Agreement may be executed in counterparts, each of which so executed shall, irrespective of
the date of its execution and delivery, be deemed an original, and all such counterparts tog~her shall
constitute one and the same instrument.
IN WiTNESS WHEREOF, the Parties have executed this Agreement the day and year first written abow.
GRANTOR:
William JosepI~BrO~v~n, Trustee
of the Brown Revocable Intervivos
Trust dated March 11, 1999
Cathl~ Ann Brown, T~T'~
of the Brown Revocable Intervivos
Trust dated March 11, 1999
Date:
Date: q"/'7'~' ~ /
CITY:
City of Encinitas
By:~
APPROVED AS TO FORM:
~ Esq.~LindaB~ & Azsoe'~tfs
~ Counsel for City~
Date:
Acquisition of Real Property Agreement.wpd 6
· ,RECORDING REQUESTED ~ AND
' AFTER RECORDING 14~IL~I~):
Attention: city Clerk
THE CITY OF ENCINITAS
505 S. Vulcan Avenue
Encinitas, CA 92024
SPACE ABOVE THIS LINE FOR RECORDER' S USE
NO DOCUMENTARY TAX DUE - R&T 11922 (amended)
NO F~E - ~ CO~E SECTION ~103
Title Order No.
Escrow No.
Assessor Parcel No. 256-233-16
[ ] All
[X] Portions
EASEMENT DEED
For and in consideration of a valuable consideration,
WILLIAM JOSEPH BROWN and C2%THLEEN ANN BROWN, TRUSTEES OF THE BROWN
REVOCABLE INTER VIVOS TRUST DATED MAR~H 11, 1999
HEREBY GRANT to the CITY OF ENCINITAS, a municipal corporation, in the County
of San Diego, State of California, its successors or assigns, the permanent
easement and right of way to construct, reconstruct,' maintain, operate and
repair an earth excavation or embankment, slope or slopes, and a storm drain,
drains, or drainage, including any or all incidents and appurtenances
thereto, over, under, along and across all that real property situated in the
City of Encinitas, County of San Diego, State of California, described as
follows:
See legal description in EXHIBIT "A," and depiction in
EXHIBIT "B," attached hereto and incorporated herein by
this reference.
Reserving unto the Grantors herein, heirs, successors and assigns the
continued use of the above-described parcel of land subject to the following
conditions: the erecting of buildings, masonry walls, masonry fences and
other structures; the planting or growing of trees; the changing of the
surface grade; and the installation of privately owned pipe lines shall be
prohibited except by written permission from the City of Encinitas.
iN WITITES$ WHElqEOF, the grantors hereto has cause this Easement Deed
to be executed as of this day of , 2001.
This is to certify that the interest in real property
conveyed by this instrument to the City of ~ncin~tas~
a municipal corporation, l~ hereby accepted by the
Dated B~
Its:
Brown/H-l/Slope & Drainage Easement
EXHiBiT A (LEGAL OESGRIPTION)
EASEMENT FOR SLOPE MAINTENANCE PURPOSES
PARCEL
That portion of Parcel 4 of Parcel Map No. 3320 in the City of Enclnltas, County of San
Diego, State of California; Filed in the office of the County Recorder of San Diego County,
December 19, 1974 as file No, 74-329632 of Official Records, described as follows:
Beginning at the Southeast comer of said Parcel 4, thence along the Southerly line of said
Parcel 4 North 89°55'08" West 47.84 feet; thence leaving said Southerly line of Parcel 4
North 27°03'46" West 21.75 feet; thence North 72°27'33. East 44.84 feet; thence North
20°12'05" East 21.51 feet; thence North 1°55'04" East 52.68; thence North 7°48'16" East
98,06 feet to the Northeast comer of said Parcel 4; thence along the Easte~ty line of said
Parcel 4 South 2°07'29" West 203.08 feet to The Point Of Beginning.
Containing 2,773 square feet, mom or less.
TOGETHER WITH all abutters Right of Access along the course hereinabove'descrii:~ed as
the Easterly line of said Parcel 4 South 2°07'2~" West 203.08 feet.
As shown on Exhibit 'B" attached hereto and by this reference made a part hereof,
BRiaN K. MICKELSON,'L.s. No, 7320
LICENSE EXPIRES: JUNE 30, 2001
Exp. 0e~0/01
,~No, 732oj~
EXHIBIT A
P;~g9(]01202 Quail Ga'den~ Drh~. Ph~ 3~Cai~Legal De~ H (Pal 4 PM 33~l)~Pamel H-1 SLOPE ESMT E.x A (t~g;~),do;
185
EXHIBIT B (SKETCH TO ACCOMPANY LEGAL DESCRIPTION)
EASEMENT FOR SLOPE MAINTENANCE PURPOSES
aRIAN K. MiCKEL$ON' L.S. # 7320
MY LICENSE EXPIRES JUNE 30, 2001
INDICATES ABUTTERS
ACCESS RIG.TS VICINITY MAP
RELINQUISHED HEREON NO
N87'53'10~ ' "1~,00'
N8~52~I~
~ISTING ~.00 FOOT WIO~ IRR~BLE
OF~R TO D~ICAm R~L PROP~W
FOR PUBLIC HIGHWAY PURPOSES
RECORDED ~VEMBER 25, 1974 ~ FILE
"~*~ { ~'~
2~.OT ....
POINT OF~
BEGINNING ~
(SOUTH~ST CORNER OF
PARCEL 4 OF P.M, NO. 3320)
~ PROPOSED QUAIL~
GARDENS DRIVE
P:L,e~OlZ02 GUAIL gARO;JL5 0RM~ - PHA~E :~A.C;~LE(~L nLSC~ARC~L H (P~L 4 P~ ~,La)7~PA.q;C~L Pc1 ~.Ofi~ MNNT EX B
EXHiB!l' El
186
EXHIBIT ~2"
RECORDING REQUESTED BY AND
AFTER RECORDING MAIL TO:
Brown Intervivos Trust
2255 La Quinta Street
Chico, CA 95928
(Space a~ove this lin~ for Recorder's use)
QUITCLAIM DEED
Assessor's Parcel No(s). 256-233-16
The undersigned Grantor declares that the documentary transfer tax is $
[] Computed on full value of property conveyed, or
[] Computed on full value less liens and encumbrances remaining at time of sale.
[] Unincorporated area ~ City of Encinitas
City of Encinitas, a municipal corporation,
for a valuable consideration, receipt of which is hereby acknowledged,
hereby releases, remises and. quitclaims to the William Joseph .Brown and
Cathleen Ann Brown, Trustees of the Brown Revocable Inter Vivos Trust dated
March 11, 1999
all right, interest or title to a portion of that certain Irrevocable Offer
to Dedicate Real Property recorded November 25, 1974 as Document No. 74-
309926 in those portions of the real property, situated in the City of
Encinitas, County of San Diego, State of California, more particularly
described in Exhibit A and depicted in Exhibit B attached hereto and
incorporated herein by this reference.
City of Encinitas, a municipal corporation
Dated: By:
ItS:
State of California
County of
SS.
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 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(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal,
Signature [Seal]
Brown/H-2/Vacate portion
EXHIBIT A (LEGAL DESCRIPTION)
VACATION OF iRREVOCABLE OFFER OF DEDICATION
FOR PUBLIC HIGHWAY PURPOSES
AND RESERVATION OF SLOPE EASEMENT RIGHTS
PARCEL H-2
All of that certain Irrevocable Offer to Dedicate Real Property for Public Highway purposes
recorded November 25, 1974 ss file No. 74-309926 o~ Official Records of San Diego
County, lying within Parcel 4 of Parcel Map No. 3320 in the City of Encinitas, County of San
Diego, State of California, Filed in the office of the County Recorder of San Diego County,
December 19, 1974 as file No. 74-329632 of Official Records.
Containing 6,108 square feet, more or less.
EXCEPTING THEREFROM Slope Easement interests in that portion lying within an
Easement for Slope Maintenance Purposes in favor of The City of Encinitas, its successors
or assigns, as more particularly described in the document filed in the office of the County
Recorder of San Diego County, ,200..._ as file No.
of Official Records.
As shown on Exhibit "B" attached hereto and by this reference made a part hereof.
I~,RiA~I' ~. I~ ......
CKEL$ON, L.S. No. 7320
LICENSE EXPIRES: JUNE 30, 2001
EXHIBIT A
P:~99.-00t 2~1 QGD II1 Out Parce~l [~,.~,.¥ ;~o r~',P~ t ~1~1 H (Pci 4 PM 3320)~P~cel H-2 VAC IOD Ex A (legal} REVI.dOC
188
EXHIBIT B (SKETCH TO ACCOMPANY LEGAL DESCRIPTION)
VACATION OF IRREVOCABLE OFFER OF DEDICATION
BRIAN K. MICKELSON, L,S. # 7320
MY LICENSE EXPIRES JUNE 30, 2001 '~\" ~ T.
VICINITY MAP
I NO SC~
~ - . N87'5~"31'qN
1~.~7. .--~.--,, ~3o.,~o' , -_.._ ~
:' ~ ~ ~ ~
, 30' ,
OFFER TO DEDICATE R~ PROPER~ ~1
FOR P~UC HIG~AY PU~OSES ~ 1 ,,, i ~36'
RE~RDED NOVE~ER25, 1974AS FILE ~ ~ ~ ~ XI "'1
NO 7~309g~OFOFFICI~RECO~S. ~ I ~ ~
PROPER~ FOR ~BLIC HIGHWAY ~ ~&~3 - ~X
SLOPE ~I~EN~CE PURPOSES,
N 89'55'08" W 251191' ~'~'-~'~
POINT OF BEGINNING ~ /
(SOUTHEAST CORNER OF ~,
P~CEL 4 OF P.M. NO. ~20)
~ PROPOSED QUAIL~
GARDENS DRIVE
QUAIL GARDENS DRIVE. pHASE 3tCN_CILEGN. DESCRiP~ON~PARCEL H
EXHIBIT B
189
From: Maeih Maher
To: Linde Bartz
Date: 10/18/02 4:24PM
Subject: Re: Fwd: Original Agreement
Hi Linde
Do you have the original agreement with Cathleen and Wdliam Brown, APN 256-233-167 This is for Quail
Gardens Drive Out Parcel. I understand that the original goes (went) to the escrow and will be recorded by
the escrow/tile company.
Please let me know the status.
Thanks, Masih
>>> Peter Cota-Rebles 10/18/02 03:EAPM >>>
Masih - Do you have the odginal that Kathy is looking for? - Peter
>>> Kathy Greene 10/18/02 11:54AM >>>
Hi Peter:
Am looking for the Original Agreement regarding the following:
Real Property Agreement dated 9-'18~1, regarding Quail Gardens Drive Extension Project, and Wm.
Joseph & Catherine Ann Brown.
I have a copy of the agreement and a copy of theEasement Deed but am missing the Original.
Would you happen to have any ideas about where the original Agreement or Deed may be?
Thank you,
Kathy
CC: Kathy Greene; Kris Boggis; Peter Cota-Robles
From: Kathy Greene
To: Peter Cota-Robles
Date: 10/18/02 11:54AM
Subject: Original Agreement
Hi Peter.
Am looking for the Original Agreement regarding the following:
Real Property Agreement dated 9-18-01, regarding Quail Gardens Drive Extension Project, and Wm.
Joseph & Catherine Ann Brown.
I have a copy of the agreement and a copy of theEasement Deed but am missing the Original.
Would you happen to have any ideas about where the original Agreement or Deed may be?
Thank you.
Kathy
CC: Deborah Cervone
Escrow
Firat Ameticen Titi~Order No. 1250993-15
Asaessor P~ Number: 256-233-16
ACQUISITION OF REAL PROPERTY AGREEMENT
.. ,, THIS ACQUISITION OF REAL PROPERTY AGREEMENT ("Agreement") i.s .entered into this
[ ~day of ~Ce/~te/3 ~o~.. 2001, by and between the CITY OF ENCIhlTAS, a muraapai ~orporation
("City"), and William Joseph and Cathleen Ann Brown, Trustees of the Brown Revocable lntorvivos Trust
dated March 11, 1999 (colleativdy "GTantor"), (tl~ "Parties") for acquisition by City of certain real
property for the Quail Gardens Drive Extenaion Project ("Proje~-'t').
~S, City desires to acquire a portion of Orantor's tight, interest, and title in and to
Grantor's real prope~y as he. minaRer desofibed;
WHERE,, Grantor desires to sell in lieu of condernnntion to City said real propmy; and
WHEREAS, an Easement Deed cone~ a portion of Orantor's real property to be acquired by
City shall be ~eeuted and ddivered to City's anthoriz~ agent, and a ~opy of said de~d with corresponding
legal description ("Property") is attached to this Agreement as Exhibit 1.
NOW THEREFORE, the Parties agren as follows:
1. AGREEMENT TO SELL AND PURCHASE
Grantor agre~ to sell to City, and City agr~s to purchase from Grantor, upon the terms and for
the consideration set forth ha this Agreement, a slope and drainage easement in and to the Properly more
particularly described in the Easement Deed which is attached hereto as Exhibit 1, and incorporated herein
by this reference.
2. PURCHASE PRICE
The total purchase price, payable ha cash through escrow (Jess any deductions rcqu~ted by Grantor
provided for elsewhere in this Agreement), shall be the sum of FIVE THOUSAND DOLLARS AND NO
CENTS ($5,000.00) (''Purchase Price"). Grantor hereby acknowledges that said purchase price is a total
settlement which includes any and all claims and/or damages of every nature and kind Grantor may be
entitled to by reason of the acquisition by City for the Project, including but not limited to, value of reai
property fights, value of the ProperW and improvements, if any, and/or precondenmation or inverse
condemnation damages, interest, and all costs and fees, including all attorney and expert f~es, incurred in
connection with the acquisition of the Property.
Grantor hereby waives and releases City, City Council, and their officers, employees, agents, and
representatives from and against any and all ciaims, actions, demands and suits relating to the purchase
price, acquisition of the Property and/or the Project, This release extends to ail such claims which now exist
or which may arise in the future, whether or not such claims are known to Grantor, and Cyrantor hereby
expressly waives rights under Caiifomia Civil code section 1542 which provides as follows:
A~quigit±on of Reol Pro~mrtyAqr~ement.wpO ~
'% general release does not e~end to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him must have
materially affected his se~emer~ with the d~tor,"
Full payment under this Agreement shall be made after City obtains a policy of rifle insurance
showing vested in City.
3. QUITCLAIM DEED
In consideration &the grant of easement, City will cause to be recorded concurrently at the dose
of escrow the Quitclaim Deed attached hereto as Exhibit 2 concerning the Irrevocable Offer of Dedication
for Public Highway Purposes.
ESCROW A.ND TITLE INSURANCE
City agrees to open an escrow in accordance with this Agreement at First American Title Insurance
Company located at 411 Ivy Street, San Diego, California. City agrees to pay all usual fees, charse~ and
costs which arise in the escrow.
Escrow instructions shall provide for cloy of escrow witMn thirty (30) days ofexecotion of this
A~reement by all Parties, or as soon thereafter a~ possible.
When Ese'ow Holder holds for City the Basement Deed in favor of City executed and
acknowledged by Grantor covering the Property, Escrow Holder shall cause to be issued and delivered to
City, az of the Closing Date, a CLTA standard coverage policy of title insurance (''Title Policy"), issued by
First American Title Insurance Company, with liability in the amount of the purchase price, covering the
Property and showing title vesting in City free ofencombranees, except:
a) All nondelinquent general and spedai real property taxes and for the current fiscal
b) The standard primed exceptions and exclusions contained in the CLTA form
policy;
c) All public or quasi-public rights of way of record; and
d) Any exceptions consented to by City, indudingwithout limitation, any exceptions
arising by reason of City's possession of or entry on the Property.
City agrees to pay the promium charged therefor.
INDEMNIFICATION FOR UNRECORDED INTEI~STS
Upon title vesting in City, Grantor warrants that there are no unrecorded encumbrances (including
Aequl~ltion of Real P:opertyA~reement.wpd 2
but not limited to liens, leases, easernents) on ail or any portion of the Property, and Grantor agrees to hold
City, City Council, their officers, employees, agents, and representatives harmless, defend, and reimburse
them for any and all of their losses and expenses, ineludin8 court costs and attorney's fees, occasioned by
reason of any such encumbrance of said Property.
ACQUISITION BY STIPULATED R~DGMENT IN LIEU OF DEED
In the event Grantor is unable to deliver title in a reasonabie time in accordance with the terms of
this Agreement, the City may pursue an action in eminent domain for acquisition of the Property. Grantor
agrees to waive all claims and defenses to such action and agrees that this Agreement shall constitote a
stipulation which may be filed in such action as final conclusive evidence of public use, necessity and just
compensation for the acquisition, including all of the items provided in Chapter 9, Title 7 oftbe C~lifornia
Code of Civil Procedure cormnencing with Section 1230,010. Grantor hereby consents to such stipulated
judgmer~ and/or dismissal of such eminent domain action and waives any and all claim to money that may
be deposited in the Superior Court or with the State Treasurer in connection with such action upon proof
of deposit of the Purchase Price into escrow.
7. CONVEYANCE OF IlqTERF. ST
Grantor agrees to convey by Easement Deed to City title in and to said Property as described in
Section 1 of this Agreement.
8. HAZARDOUS MATERIALS
It is understood that the Property does not appear to contain hazardous materials or waste, including
but not limited to, 8asolinedoil storage tanks, or pesticide storage tanks, or any contaminant. However,
should hazardous materials or waste be found to e0dst on the Property, the City may exereis~ its right under
existing law to bring an action, if necessary, to recover clean-up costs fi.om Grantor or any otbers who are
ultimately determined to have responsibility for said hazardous materiais or waste on the ProperW. Grantor
warrants that he has no knowledge of any hazardous materials/waste on the Property and thet Grantor has
not used any hazardous materials or disposed of hazardous waste on the Property, and that there are no
underground tanks un the Property to the best of Grantor~s knowledge.
9, PERMISSION TO ENTER PROPERTY
Grantor hereby grants to City, its agents, e~nployees, representatives and/or inviteaz, successors or
assigns effective immediately upon the date this Agreement is executed by Grantor, a fight of entry over,
under, aiong, across and flu'ough the Property for all purposes, including grading and constrnetion, deemed
by the City to be necessary or convenient for the Project, or related appurtenances, and agrees that the
amount shown in Section 9_ herein includes, but is not limited to, full payment for such entry rights,
including damages, if any, fi.om said date. City agrees to indemnify, hold harmless and defend Grantor for
any and all losses and expenses, including court costs and reasonable attorney's fees, occasioned by any
such en~y.
10. UTILITY WORK TO BE PERFORMED BY CITY
City shall at its sole cost and expense bring wet utility connections (sewer and domestic water)
Acquisition of Real Pro~er~y Agreement.wpd 3
stubbed out to the Property line at a location to be determined at City's sole discretion.
City shall at the renuest of C-ranter bring d~ utility connections (telephone, cable T.V., electric and
gas) stubbed out to the Property line at a location to be determined at City's sole discretion. Dry utilities
shall be paid for by Grantor by a deduction from the Purchase Price in the amount of THREE THOUSAND
TWO HUNDRED TWENTY FIVE DOLLARS AND NO CENTS ($3,225.00).
Grantor acknowledges that Grantor is responsible for all connections, permits, fee% and all related
work on the subject property in order to uso such utilities and services.
11. MEDIATION OF DISPUTES
If any dispute arises out of this Agreement, or the breach thereof, and if the dispute cannot be settled
through negotiation, the Parties agree before resorting to legal action, to attempt in good faith to settle the
dispute through mediation before a mediator to be agre~ upon by the Parties. The Parties agree to share
equally the cost of mediatinn,
12. ATTORNEYS' FEES
In the event any legal action is brought to enforce the terms of this Agreement or to recover
damages for its breach, the prevailing party shall be entitled to court costs and reasonable attorneys' fees
therein as well as those incurred in enforein8 any judgment pertaining thereto.
It is mutually agreed that this Agreement is executed under the threat or imminence of
condeannafion pursuant to the power of eminent domain as those terms are used in the United States
Internal Revenue Code.
14. NOTICES
Any notices or documents to be mailed or delivered shall he addressed to or delivered as follows:
Grantor:
W'dliam loseph Brown & Cathleen Arm Brown, Trustees
2255 La Quinta Street
Chico, CA 95928
City:
City of Enclnitns
505 S. Vulcan Avenue
Encinita% CA 92024
Attn: Director of Engineering Services
With copy to:
Linda D. Bartz, Esq.
Linda Bartz & Assodates
1010 Second Avenue, Suite 1010
San Diego, CA 92101-4904
Acquisition of Real Property A~reem~nt.w~d 4
15. BINDING ON HEIRS AND ASSIGNS
The terms, conditions, covenants and agreements set forth herein shall apply and bind the heirs,
executors, administrators, successors and assigns of the Parties hereto.
16. ENTIRE AGREE~
This Agreement contains the entire agreement between the Parties, and neither party relies upon
any warranty, promise, representation, or agreement not contained in writing herein.
17. SURVIVABILITY
The Parties acknowledge and agree that terms and conditions of the Agreement shall survive the
close ofeserow and remain in full force and effect.
18. TIME OF THE ESSENCE
Time is of the essence and each party shall promptly execute all documents necessary to effectuate
the intent herein and shall perform in strict accordance with each of the herelnabove provisions.
19. CIVIL COMPROMISE
It is mutually agreed that the resulting real estate transaction pursuant to this Agreement is a civil
compromise of dispute claims between the Parties.
20. AUTHORITY TO BIND
The Parties warrant each to the other that the person whose signatures appear on its behalfhelow
has the authority to bind such party to the terms of this Agreement, and that by entering into this
Agreement, such party is not thereby in breach of any other agreement or contract.
21. INTERPRETATION OF AGg~.~MENT
In the event of any dispute arising concerning the interpretation of this Agreemem or the terms
thereof, any ambiguities which may be found herein shall be interpreted st, coMing to the fair and reasonable
meaning of the language used considering the stated intentions of the Parties. Any rule of construction,
to the effect that ambiguities are to be resolved against the draRing party, shall not apply in the
interpretation of this Agreement.
22. NO COMMISSION
Neither party has engaged the services of a Realtor, agent or broker and therefore no sales
commission(s) are applicable to the transaction which is the subject ofthls Agreement,
23. RIGHT TO INDEPENDENT LEGAL ADVICE
It is hereby expressly understood and agreed that Grantor, and each of thera, has individually and
Acquisition of R, al Pr¢~er~yAgresmont.W~ ~
independently made their own investigation of the facts and law relating to this transa~on and Asreement.
Grantor, and each of them, acknowledge that they have carefully read this Agreement in its entirety, that
they fi-eely and of their own volition emer into this Agreement. Grantor, and each ofthenL acknowledge
that they have the right to obtain independent legal advice and that AttomeyLindaD. Bartz has represented
the City and has not provided advice, legal or othevwLse, to Grantor, or any ofthevx
24. COUI~rERPART$
This Agreement may be executed in counterparts, each 0fwhich so executed shall, irrespective of
the date of its execution and deliver], be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first written above.
GRANTOR:
~illiam Jo~eplfBrotwn, TrUstee
of the Brown Revocable Int~rvivo~
Trust dated March 11, 1999
cathleen Ann Brown, T~t~ '
of the Brown Revocable Intervivos
Trust dated March 11, 1999
Date: q /
CITY:
City of Encinitas
a muniei/p~,~
APPROVED AS TO FORM:
~, Esq.~LindaBatJ~ & Ass°cia7
~ Counsel for City~
Date:
Acquisition of Real Property A~reement.wp~ 6
EXHIBIT ~.1"
RE~OBDING REQUESTED BY AND
A~TER RECORDING MAIL TO:
Attention: City Clerk
THE CITY OF ENCINITAS
505 S. Vulcan Avenue
Encinitas, CA 92024
Title Order No.'
SPACE ABOVE THIS LINE FOR RECORDER'S USE
NO DOCUMENTARY TAX DUE - R&T 11922 (amended)
NO FEE - ~OVEP~NT ~ SECTX~ 6103
EscrOw NO.
Assessor Parcel NO. 256-233-16
[ ] Ail
IX] Portions
EASEMENT DEED
For and in consideration of a valuable consideration,
WILLIAM JOSEPH BROWN and CATHLEEN ANN BROWN, TRUSTEES OF THE BROWN
REVOCABLE INTER VIVOS TRUST DATED MARCH 11, 1999
HEREBY GRANT to the CITY OF ENCINITAS, a municipal corporation, in the County
of San Diego, State of California, its successors or assigns, the permanent
easement and right of way to construct, reconstruct,' maintain, operate and
repair an earth excavation or embankment, slope or slopes, and a storm drain,
drains, or drainage, including any or all incidents and appurtenances
thereto, over, under, along and across all that real property situated in the
City of Encinitas, County of San Diego, State of California, described as
follows:
See legal description in EXHIBIT "A," and depiction in
EXHIBIT ~B," attached hereto and incorporated herein by
this reference.
Reserving unto the Grantors herein, heirs, successors and assigns the
continued use of the above-described parcel of land subject to the following
conditions: the erecting of buildings, ~asonry walls, masonry fences and
other structures; the planting or growing of trees; the changing of the
surface grade; and the installation of privately owned pipe lines shall be
prohibited except by written permission from the City of Encinitas.
IN WITNESS NHEP~OF, the grantors hereto has cause this Easement Deed
to be executed as of this day of , 2001.
This is to certify that the interest in real property
conYeyed by this instrument to the City of En~lnitas,
unde£sidned authorized officer On behalf of the City
recordation thereof by its duly authorized officer.
BroWn/H-I/Slope & Drainage Easement
EXHIBIT A (LEGAL DESCRIPTION)
EASEMENT FOR SLOPE MAINTENANCE PURPOSES
PARCEL H-I
That portion of Parcel 4 of Parcel Map No. 3320 in the City of Encinltas, County of San
Diego, State of California, Filed in the office of the County Recorder of San Diego County,
December 19, 1974 as f~Je No. 74-329632 of OfficJaJ Records, described as follows:
Beginning at the Southeast comer of said Parcel 4, thence along the Southerly line of said
Parcel 4 North 89'55'08" West 47.84 feet; thence leaving said Southel~y line of Parcel 4
North 27°03'46" West 21.75 feet; thence North 72°27'33" East 44.84 feet; thence North
20°12'05- East 21.51 feet; thence North 1°55'04- East 52.68; thence North 7°48'16' East
98.06 feet to the Northeast comer of said Parcel 4; thence along the Easterly line of said
Parcel 4 South 2°07"29" West 203.08 feet to The Point Of Beginning.
Containing 2°773 square feet, mom or less.
TOGETHER WITH all abutters Right of Access along the course hereinabove'descdl~ed as
the Easterly line of said Parcel 4 South 2'07'2~" west 203.08 feet.
As shown on Exhibit 'B" attached hereto and by this reference made a part hereof.
BRIAN K, MICKELSON, L.Si No. 7320
LICENSE EXPIRES: JUNE 30, 2001
No. 7320 ~
EXHIBIT A
P:~190012(}'2 Q~ail Getdere~ Drive - p~ 3~-,ai~LegaJ Des~;~o~3atcel H (P'~ 4 pM 3320)~Pumel H-1 SLOf3~ ESMT E.x A (legal).doc
EXHIBIT B (SKETCH TO ACCOMPANY LEGAL DESCRIPTION)
EASEMENT FOR SLOPE MAINTENANCE PURPOSES
INDICATE,~ ABUTTERS '
ACCESS RIGHTS VICINITY MAP
RELINQUISHED HEREON NO SCALE
I /c~_
OFFER TO DEDiCAm R~L PROPER~ ~ 2 ~
FOR PUBLIC HIGHWAYPU~OSES t. ~; 36'
RECORDED NOVEMBER 25, 1974 ~ FILE ~ ~ ?J ~ --
NO. 7~30~ OF OFF C AL RECORDS. ~ ~1 ~ ~
· o.~., ·
POINT OF~
BEGINNING ~
(SOUTH~ST CORNER OF
PARCEL 4 OF P.M, NO. 3320) ~
~ PROPOSED QUAIL~
GARDENS DRIVE
QUAIL GARDEi~ DRIV~
'EXHIBIT El
EXHIBIT "2"
RECORDING REQUESTED BY AND
AFTER RECORDING MAiL TO:
Brown Intervivos Trust
2255 La Quinta Street
Chico, CA 95928
(Space above this 1Ane for Recorder's use)
QUITCLAIM DEED
Assessor's Parcel No(s). 256-233-16
The undersigned Grantor declares that the documentary transfer tax is $
[] Computed on full value of property conveyed, or
~ Computed on full value less liens and encumbrances remaining at time of sale.'
~ Unincorporated area [] City of ~ncinitas
Signature of Declarant or Agent Determining Tax. Firm Name
City of Encinitas, a municipal corporation,
for a valuable consideration, receipt of which is hereby acknowledged,
hereby releases, remises and. quitclaims to the William Joseph Brown and
Cathleen Ann Brown, Trustees of the Brown Revocable Inter Vivos Trust claWed
March 11, 1999
all right, interest or title to & portion of that certain Irrevocable Offer
to Oedicate Real Property recorded November 25, 1974 as Document No. 74-
309926 in those portions of the real property, situated in the City of
Encinitas, County of San Diego, State of California, more particularly
des'cribed in Exhibit A and depicted in Exhibit B attached hereto and
incorporated herein by this reference.
City of Encinitas, a municipal corporati~h
Dated: By:
Its:
State of California
County of } SS.
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 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(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal,
Signature [Seal]
Brown/H-2/Vacate portion
EXHIBIT A (LEGAL DESCRIPTION)
VACATION OF IRREVOCABLE OFFER OF DEDICATION
FOR PUBLIC HIGHWAY PURPOSES
AND RESERVATION OF SLOPE EASEMENT RIGHTS
PARCEL H-2
All of that certain Irrevocable Offer to Dedicate Real Property for Public Highway purposes
recorded November 25, 1974 as file No. 74~309926 of Official Records of San Diego
County, lying within Pamel 4 of Parcel Map No. 3320 in the City of Encinitas, County of San
Diego, State of California, Filed in the office of the County Recorder of San Diego County,
December 19, 1974 as file No. 74-329632 of Official Records.
Containing 6,108 square feet, more or tess.
EXCEPTING THEREFROM Slope Easement interests in that portion lying within an
Easement for Slope Maintenance Purposes in favor of The City of Encinitas,/ts successors
or assigns, as more particularly described in the document filed in the office of the County
ReCorder of .San Diego County, . ,200._ as file No.
of Official Records.
As shown on Exhibit "B" attached hereto and by this reference made a part hereof.
BRIAN K. MICKELSON, L.S, No. 7320
LICENSE EXPIRES: JUNE 30, 2001
EXHIBIT A
P:Lgg-O012.01 QGD III Oul~ Parce~7,alc~Legal De~tion'~m:el H (lad 4 PM 3320)~Pa,'ON H-2 VAC IOO Ex A (legal) REVi,doc~
EXHIBIT B (SKETCH TO ACCOMPANY LEGAL DESCRIPTION)
VACATION OF IRREVOCABLE OFFER OF DEDICATION
VICINITY MAP
, 121.77 .~ ~ 130.~' ' '
~ ~ OFFER TO DEDI~TE R~L PROPERW ~ J .-:.
~1~ FOR PUBUC HIG~AY PURPOSES ~ ~
~l RECORDED NOVEMBER 2~. l~74~FILE ~ ~
~1 NO. 7~309928 OF OFFICI~ RECO~S. ~ I ~
PROPER~ FOR PUBLIC HIGHWAY ~'-~&,6T - ~~
~ SUaJECT TO ~SEMENT FOR ~ ~N
(SOUTHE~T C~NER OF ~m
PARCEL 4 OF P.M. NO, 3320)
~ PROPOSED QUAIL
GARDENS DRIVE
p.-19'A~t 202 QUAIL GARDENS DRIVE. PHASE 31CALOILEGAL DEF;~CR~TIONt~A~ICEL H (PCL 4 PM 3,320)~A,ROEL
EXHIBIT B