2006-152 I l NGINEERING SERVICES DEPARTMENT
CZt�Of RTMENT
Encinitas Capital Improvement Projects
District Support Services
Field Operations
Sand Rep lenishment/Stormwater Compliance
Subdivision Engineering
Traffic Engineering
February 14, 2008
Attn: American Contractors Indemnity Company
9841 Airport Blvd.
9th Floor
Los Angeles, California 90045
RE: Ford-DWO Cardiff, L.P.
125 Chesterfield Avenue
APN 260-620-54
Grading Permit 153-I
Final release of security
Pen-nit 153-1 authorized the installation of public road and drainage improvements. The
Field Inspector has approved the installation of the improvements and approved the one-
year warranty inspection. Therefore, a full release in the remaining security deposit is
merited.
Performance Bond 321509, (in the original amount of$84,000.00), reduced by 75%
to $21,000.00, is hereby released in entirety. The document original is enclosed.
Should you have any questions or concerns, please contact Debra Geishart at (760) 633-
2779 or in writing, attention this Department.
Sincerely,
Debra Geishart VLYeach
Engineering Technician Finance Manager
Subdivision Engineering Financial Services
CC Jay Lembach,Finance Manager
Ford-DWO Cardiff,L.P.
Debra Geishart
File
Enc.
TEL 760-633-2600 / FAX 760-633-2627 505 S. Vulcan Avenue, Encinitas, California 92024-3633 TDD 760-633-2700 �� recycled paper
ENGINEERING SER VICES DEPARTMENT
- City Of
Eminitas Capital Improvement Projects
District Support Services
Field Operations
Sand Replenishment/Stormwater Compliance
Subdivision Engineering
Traffic Engineering
February 8, 2007
Attn: American Contractors Indemnity Company
9841 Airport Blvd.
9th Floor
Los Angeles, California 90045
RE: Ford-DWO Cardiff, L.P.
125 Chesterfield Avenue
APN 260-620-54
Grading Permit 153-I
Partial release of security
Permit 153-I authorized the installation of public road and drainage improvements. The
Field Inspector has approved the installation of the improvements. Therefore, a reduction
in the security deposit is merited.
Performance Bond 321509, in the amount of$84,000.00, may be reduced by 75% to
$21,000.00. The document original will be kept until such time it is fully exonerated.
The retention and a separate assignment guarantee completion after the one-year
warranty inspection period.
Should you have any questions or concerns,please contact Debra Geishart at(760) 633-
2779 or in writing, attention this Department.
Sincerely,
Debra Geishart VZay mb ach
Engineering Technician nance Manager
Subdivision Engineering Financial Services
CC Jay Lembach,Finance Manager
Ford-DWO Cardiff,L.P.
Debra Geishart
File
TEL 760-633-2600 1 FAX 760-633-2627 505 S. Vulcan Avenue, Encinitas, California 92024-3633 TDD 760-633-2700 74� recycled paper
COC
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RECORDING REQUESTED BY AND OFFICJAI REPIRE
WHEN RECORDED MAIL TO-
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N DID0 M11-T, - - L 11 -,:11 L
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GREGO
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David R. Moore, Esq.
Moore & Sk1ljan
7700 El Camino Real, Suite 207
Carlsbad, CA 92009
7-Eleven Location No. 25766
THIS MEMORANDUM OF IMPROVEMENT AGREEMENT is made and
entered into on July 2003 by and between Ford Mance Company, a Delaware
corporation ("FoMaCo") and 7-Elever., Inc., a Texas corporation ('7-11"). 7-11 is the
owner of real property commonly known as 2211 San 'Elijo Avenue, Cardiff, California
and legally described as Lots I through 6 inclusive, in Block 22 1/2 and Lots 7 and 8, in
Block 31 1/2, all being in Cardiff, City of Encinitas, County of San Diego, State of
California, according to Map thereof No. 1662, filed in the Office of the County Recorder
of San Diego County, March 1, 1915 ("7-11 Property"). FoMaCo is the owner of real
property commonly known as 123-125 Chesterfield Drive, Cardiff, California and legally
described as Lots IS and 19, Block 20 of Amended Subdivision of Blocks 19, 20 and 32-
1/2 of Cardiff, in the City of Encinitas, County of San Diego, State of California,
according to May thereof No. 1662, filed in the office of the County Recorder of San
Diego County, March 1, 1915, excepting therefrom the easterly 10 feet of Lot IS and the
Northeasterly ono half of Newport Avenue adjoining Lot 19, Block 20, in the City of
Encinitas, County of San Diego, State of California, according to Map thereof no. 1662
filed in the office of the County Recorder of San Diego County March 1, 1915on the
southwest which was vacated and closed to public use by resolution no. 97-80 issued by
the City Council of the City of Encinitas, a certified copy of which recorded October 28,
1997 as file no. 1997-0539812 of Official Records ("FoMaCo Property"). 7-11 hereby
grants FoMaCo the right to enter upon portions of 7-11 Property to grade and construct
improvements for the benefit of FoMaCo Property according to the City of Encinitas Plan
File Number 7604-G upon such terms and conditions set forth in the Improvement
Agreement by and between the parties hereto dated July —1 2003, all terms and
conditions of which are made a part of this Memorandum of Improvement Agreement as
though fully set forth herein.
7-Eleven, Inc. Ford Mance Company
By:� By:
,
P-sidenf-crr Attorney-in-Fact Robert F. Mance, President
Attest:
By/
sistant Se,,, tart'/
it
z
CALIFORNIA ALL-PU POSE ACKNOWLEDGEMENT
State of '7 l�! A-4��_
County o
/ before me, e 7z_Ld_ ,.--,
Name and Title of Officer(e.g.,"Jane Doe,Notary Public")
personally appeared `/L
Name(s)of Signer(s)
e sonally 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
JANET CARLSON signature(s) on the instrument the person(s), or the entity upon
COMM.#1379280 m behalf of which the person(s) acted, executed the instrument.
No Public-California (A
w SAN DIEGO COUNTY
My Comm.Exp.Oct 8,2006 F WIT my hand avid oft+gial seal.
G
ignature of 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: Number of Pages:
Signer(s)Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual
❑ Individual
❑ Corporate Officer ❑ Corporate Officer
❑ Titles(s): ❑ Title(s):
❑ Partner- ❑ Limited ❑ General
❑ Attorney-in-Fact E] Partner- [] Limited ❑ General
E] Attorney-in-Fact
E] Trustee
Trustee
r_1 Guardian or Conservator �� =:- ' ❑ __
❑ Guardian or Conservator
❑ Other: Top of Thumb here ❑
Other: Top of Thumb here
Signer Is Representing: Signer Is Representing:
STATE OF TEXAS ]
] TO WIT:
COUNTY OF DALLAS ]
On August 19, 2003, before me, the undersigned, a Notary Public in and for said State,
personally appeared David Holland, known to me to be Manager, Real Estate Services,
Attorney-in-Fact, and Marijan Smith, known to me to be Assistant Secretary of the
corporation that executed the within Instrument, known to me to be the persons who
executed the within Instrument on behalf of the corporation therein named, and
acknowledged to me that such corporation executed the within Instrument pursuant to its
by-laws or a resolution of its board of directors.
WITNESS my hand and official seal. :- Robin Bryant
'* * Notary Public,State of Texas
°r•..oM f *P�;; My Comm.Expires 04/22/06
Signature
Robin Bryant
(Seal)
7-Eleven Location 25766
LMPROVEMENT AGREEMENT
This Improvement Agreement (hereinafter referred to as this "Agreement') is entered
into by and between Ford Mance Company, a Delaware corporation, also known as Ford Mance
Corporation (hereinafter referred to as "FoMaCo' and 7-Eleven, Inc., a Texas corporation
(hereinafter referred to as "7-Eleven', effective
the following facts: 2003 with reference to
WHEREAS, FoMaCo is the owner of 123-125 Chesterfield Drive, Cardiff, California
Iegally described on Exhibit H attached hereto (hereinafter referred to as "FoMaCo Property's
and FoMaCo is in the process of improving the FoMaCo Property(see Exhibit A attached hereto
for elevations of the building to be constructed on the FoMaCo Property);
WHEREAS, 7-Eleven is the owner of 2211 San Elijo Avenue, Cardiff, California, legally
described on Exhibit B attached hereto (hereinafter referred to as "7-Eleven Pro e
improved with a retail building,parking lot and gas pumps; P �'
WHEREAS, the 7-Eleven Property and the FoMaCo Property are adjoining
the eastern boundary of the 7-Eleven Property Properties at
(hereinafter referred to as `Boundary's (see Exhibi Csattached hereto of forha diagram Property
Eleven Property and the FoMaCo Property and photographs of the bound l of the 7-
the 7-Eleven Property); and boundary area as viewed from
WHEREAS, the improvement of the FoMaCo Property requires alterations to and
improvements of approximately thirty feet of the eastern portion of the 7-Eleven Property
Primarily consisting of a landscaped area and s to construct at FoMaCo's sole cost and expense and will result in improving th aCo has agreed
the eastern portion of the 7-Eleven Property, P g appearance of
NOW THEREFORE,FoMaCo and 7-Eleven agree as follows:
1- 7-Eleven hereby grants FoMaCo permission to enter upon such portion of the 7-Eleven
Property as is reasonably necessary to grade and construct the improvements (the
"Improvements")set forth on page four(4) of the grading plan attached hereto as Exhibit
D (the "Grading Plan") and the landscaping plan attached hereto as Exhibit E (the
"Landscaping Plan'D. The grading and construction of the Improvements will include,
but is not limited to, slope reduction, the removal and replacement of f ,
relocation of utilities (electricity and water)and the air/water vending machine. 7-Eleven en cin g the
agrees to execute a permission for the construction of improvements in the form of
Exhibit G attached hereto. 7-Eleven agrees to execute a recordable easement in form
for the installation of a stone drain inlet and its
maintenance and repair by FoMaCo. In the event that 7-Eleven changes the location of
the improvements located on the 7-Eleven Property so as to alter the character, quantity,
quality of storm water runoff from the 7-Eleven Property that will be directed to the
storm drain inlet on the 7-Eleven Property that drains to the FoMaCo Property, then 7-
Eleven will be responsible for providing alternative or additional drainage for that
and substance similar to Exhibit J attached hereto
additional or different storm water runoff However, FoMaCo shall be responsible at its
sole cost and expense to provide proper drainage from portions of 7-Eleven Property onto
the FoMaCo Property until such time as an alteration to the improvements on the 7-
Eleven Property subsequent to the installation of the Improvements changes the storm
water runoff as provided above.
2. 7-Eleven hereby grants FoMaCo the right to encroach on portions of the 7-Eleven
Property as necessary to construct and maintain a shoring wall along Boundary with "I"
beams, shown as "I" within a hash marked circle on the Grading Plan, (the "Shoring
Wall") and as necessary to construct and maintain a retaining wall as set forth on item 19
on the Grading Plan (the "Retaining Wall"). 7-Eleven agrees to execute a recordable
easement in form acceptable to the City of Encinitas of approximately one foot west of
Boundary for the permanent encroachment of structural elements including soldier piles
for the Retaining Wall and to allow access for repair and maintenance of the Retaining
Wall. Following the installation of the Retaining Wall, 7-Eleven may cut or remove the
beams of the Shoring Wall only in the event such removal is required for the
development of the 7-Eleven Property.
3. 7-Eleven hereby grants FoMaCo permission to remove and replace landscaping on the 7-
Eleven Property in accordance with the Landscaping Plans.
4. 7-Eleven agrees to grant to FoMaCo and/or San Diego Gas & Electric (hereinafter
referred to as "SDG&E") an easement over a portion of the 7-Eleven Property for access,
maintenance and transmission of utilities from the existing SDG&E transformer on the 7-
Eleven Property to FoMaCo Property. The easement will be prepared and recorded by
SDG&E.
5. 7-Eleven agrees that FoMaCo shall, at FoMaCo's sole expense, place a roof on top of the
canopy over the gas pumps on the 7-Eleven Property in a similar design of the roof of the
7-Eleven retail building (see Exhibit F attached hereto) and shall at FoMaCo's sole
expense, remove, replace and alter the parking lot lights by adding shutters or blinders to
direct lighting downward. The work described in this paragraph will be deemed part of
the "Improvements".
6. FoMaCo shall be solely responsible for all costs of constructing the Improvements on the
7-Eleven Property as set forth in Exhibits D and E and otherwise described herein.
FoMaCo shall provide 7-Eleven with a letter from FoMaCo's construction lender that
funds are available for construction costs of the Improvements. FoMaCo shall be
responsible for obtaining all required approvals from the City of Encinitas and any other
governmental authorities or third parties for the Improvements and 7-Eleven agrees to
execute such documents as are required by the City of Encinitas for the Improvements.
FoMaCo shall construct the Improvements in accordance with the timeline attached
ereto as x i it (the "Construction Timeline"). Upon the submission of red lined "as
L� built" plans to the City of Encinitas and 7-Eleven and the completion of the City of
Encinitas and 7-Eleven "punchlists", if any (hereinafter referred to as "Completion of
Work"), 7-Eleven agrees to accept all Improvements on the 7-Eleven Property and to be
responsible for their maintenance and repair, except as provided herein with respect to the
Shoring Wall, the Retaining Wall, the storm drain inlet and the utility lines. 7-Eleven
hereby grants FoMaCo permission to enter the 7-Eleven Property for purpose of effecting
any repairs or maintenance set forth in this Agreement.
7. FoMaCo covenants and agrees with 7-Eleven, on behalf of itself or its successors and
assigns, as the case may be, to indemnify and to hold harmless 7-Eleven, its successors
and assigns, from any and all claims, liabilities, and expenses which may be claimed or
asserted against 7-Eleven, its successors or assigns, or the 7-Eleven Property, on account
of the exercise by FoMaCo of the rights and easements herein granted and conveyed,
including, but without limitation, any mechanics' or materialmen's liens or claims of lien
which may be asserted against 7-Eleven, its successors or assigns, or the 7-Eleven
Property, on account of the performance of the work required for the installation and
construction of the Improvements. In addition, FoMaCo shall procure and maintain
throughout the installation of the Improvements a policy of commercial general public
liability insurance covering the 7-Eleven Property with combined single limit coverage of
$1,000,000.00 and a deductible of$10,000.00 or less; such policy shall name 7-Eleven as
a additional insured and FoMaCo shall provide 7-Eleven with a certificate evidencing
such insurance prior to FoMaCo's entry onto the 7-Eleven Property pursuant to this
Agreement.
8. FoMaCo will provide 7-Eleven written notice at least one week in advance of the
commencement of activities requiring a grading permit and one week in advance of the
commencement of activities requiring a building permit. Such written notices will be
sent to the store operator Vinh Dan-, 2211 San Elijo Avenue, Cardiff, CA 92007, market
manager John Dyer, 9771 Clairemont Mesa Blvd., Suite G, San Diego, CA 92124, real
estate representative Mark Haines at 9771 Clairemont Mesa Blvd., Suite G, San Diego,
California 92124, and to 7-Eleven, Inc., Attn: Corporate Real Estate, P. O. Box 711,
Dallas, TX 75221-0711.
9. FoMaCo will take reasonable action to schedule and conduct grading and construction
activities to minimize the disruption of business conducted on 7-Eleven Property. In the
event that the construction of the Improvements on 7-Eleven Property results in'a loss of
revenue of at least fifty percent (50%) of sales as compared to the prior year for the same
day(s) under similar circumstances except for the construction activities by FoMaCo on
7-Eleven Property, then FoMaCo shall pay for 50% of the lost net profits for that day(s)
resulting from the construction activities of FoMaCo on 7-Eleven Property.
10. Should FoMaCo fail to construct or maintain the Improvements on the 7-Eleven Property
as provided in this Agreement after thirty (30) days' written notice to correct such
condition having been served upon FoMaCo by 7-Eleven, then 7-Eleven may, at its
election, take such action as may be reasonably necessary to correct the construction or
maintenance failures of FoMaCo. However, if such correction reasonably requires more
than thirty (30) days to cure, FoMaCo shall not be in default if such cure is commenced
within such thirty (30) day period and thereafter diligently pursued to completion. If
Fo�tilaCo cannot perform any of its obligations due to events beyond FoMaCo's control,
the time for performing such obligations shall be extended by a period of time equal to
the duration of such events. Events beyond FoMaCo's control include, but are not limited
to, acts of God, war, civil commotion, labor disputes, strikes, fire, flood, shortages of
labor or material, government regulation or restriction, weather conditions, other
casualties or other matters beyond FoMaCo's reasonable control. All costs associated
with correcting the failure to construct or maintain, including a reasonable overhead
charge and reasonable attorneys' fees to effect the recovery of such costs, shall be
recoverable by 7-Eleven.
11. If a party commences or is made a party to a lawsuit, arbitration or other legal proceeding
(hereinafter "proceeding") to enforce or interpret this Agreement, or to obtain a
declaration of rights under this Agreement, the prevailing party in such proceeding shall
be entitled to recover from the other party reasonable attorneys' fees and costs incurred
with such proceeding, including without limitation any appeal or enforcement of any
Judgment or order rendered in such proceeding.
12. This Agreement may be amended only by a written agreement signed by all parties to this
Agreement. Waiver of any provision of this Agreement shall not be deemed or constitute
a waiver of any other provisions, nor shall such waiver constitute a continuing waiver.
1 3• Any notices hereunder shall be in writing and shall be deemed to have been given if
delivered by hand, or sent by prepaid and
United States mail, return receipt
requested, to the following addresses; provided, however, that a party shall have the right
to change its address for notice hereunder by the giving of written notice to the other
parties in the manner set forth in this section:
If to FoMaCo: Ford Mance Company
P.O. Box 910
Cardiff by the Sea, CA 92007
Attn: Robert F. Mance
It to 7-Eleven: 7-Eleven, Inc.
2711 North Haskell Avenue
Dallas, Texas 75204-2906
Attn: General Counsel
With copy to: 7-Eleven, Inc.
2711 North Haskell Avenue
Dallas, Texas 75204-2906
Attn: Corporate Real Estate
With copy to: 7-Eleven, Inc.
9771 Clairemont Mesa Boulevard
Suite G
San Diego, California 92124
Attn: Real Estate Representative
provided,however, that the foregoing shall not be deemed to require the consent of either party to
the sale by the other party of fee simple title to its real property described herein and subject hereto.
14. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, beneficiaries, legal representatives, successors and assigns. Neither
ply may assign this Agreement to any person or entity without the other party's prior
wntten consen
15. This Agreement may be executed in any number of counterparts, all of which together
shall constitute a binding agreement, and each such counterpart shall be deemed an
original instrument.
16. This Agreement shall be governed by and construed under the laws of the State of
California, without regard to its conflicts of law principles. If any provision of this
Agreement is invalid or unenforceable, such provision shall (i) be modified to the
minimum extent necessary to render it valid and enforceable, or (ii) if it cannot be so
modified,be deemed not to be a part of this Agreement and shall not affect the validity or
enforceability of the remaining provisions.
17. This Agreement has been negotiated at arm's length and each party has been, or has had
the opportunity to be, represented by legal counsel. Accordingly, any rule of law
(including California Civil Code Section 1654) or legal decision that would require
interpretation of any ambiguities in this Agreement against the party drafting it is not
applicable and is waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effect the purpose of the parties and this Agreement.
18. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter set forth herein and supersedes all previous oral and written agreements,
communications,representations or commitments.
19. The parties agree that they will execute such other and further documents that are or may
become necessary or convenient to carry out and consummate the transactions
contemplated by this Agreement.
20. Each person signing this Agreement hereby represents and warrants that they have the
authority to do so and that this Agreement binds the corporation for whom they are
signing this Agreement.
21. In consideration of 7-Eleven's agreements set forth herein, FoMaCo agrees to pay all of
7-Eleven's reasonable attorneys' fees and costs incurred in the negotiation and
administration of this Agreement within thirty(30) days of receiving from time to time an
invoice of such attorneys' fees and costs from 7-Eleven. In the event 7-Eleven and
FoMaCo are opposing parties in a proceeding, the provisions of paragraph 11 of the
Agreement shall control; other circumstances causing 7-Eleven to incur attorneys' fees
and costs pursuant to or in connection with this Agreement shall be governed by this
paragraph 21.
FORD MANCE COMPANY, a Delaware 7-ELEVEN,INC., a Texas corporation
corporation
By
Robert F. ance By'
President Attorney-in-Fact
Attest:
B
Assist Secretary
(Seal)
• V•
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V
EXHIBIT A
7-Eleven Property
Parcel 1
Lots 1 through 6 inclusive, in Block 32 1/2 of CARDIFF, in the County of
San Diego, State of California, according to Map thereof No. 1662, filed
in the Office of the County Recorder of San Diego County, March 1 , 1915.
Parcel 2:
Lots 7 and 8 in Block 32 1/2 of CARDIFF, in the County of San Diego, State
of California, according to Map No. 1662, filed in the Office of the County
Recorder of San Diego County, March 1 , 1915.
G.NIBIT
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...°e".. PRELIMINARY DESIGN —
(va0))59-ua9, pY j000)000=0090 NOT FOR CONSTRUCTION
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PERMISSION FOR THE
CONSTRUCTION OF IMPROVEMENTS
I (we), the owner(s) of the land described as APN hereby grant
the owner(s) of the land described as
, the permission to construct the
improvements as shown on the City of Encinitas Drawing No. pursuant to
terms and conditions set forth in that certain Improvement Agreement between 7-Eleven, Inc.
and Ford Mance Company dated , 2003
This Permission to work and construct improvements on our land shall run with the land
and be binding upon and inure the future owner, encumbrancers, successors, personal
representatives, transferees and assigns of the respective parties, and shall terminate with the
filing of a Notice of Completion of said construction with the County Recorder of San Diego
County.
By Dated
Print Name
IaIIIIII 1 G' � �
FoMaCo Property
LEGAL DEGCR19TION IBTT - --
PARCEL A.
LOTI' 18 AND 19, BLOCK 20 OF AMBNDED-SUBDIVXSZON OF BLOCXS 19, 20 AND 32-1/2 OF
CARDIFF, = THE CITY OF ENC==M, COIIN'z'Y OF SAN DIEGO, STATE OF CALIFOMaA,
ACCORD=G TO MAP TST::MOM NO, 1662, FZLBD IN TES OFFICE OF TSE COLWVI RECORDER OF SAKI
DIEGO COMT--, I'WCIL 1, 1915`,
=CEP'TTNG TEPREFROM THE EASTERLY 10 FEET OF LOT 18.
PAR= B z
THE NORTHUZTERLY ONE MLF OF AT kIORT AVENUE ADJ`Ol:7ING LOT 19, BLOCK 20, IN T= CITY
OP =C=TAS, COUNTY OF SAN Dom, STATE 0,',CALIFO3Z=, ACCORDING TO MAP THMME 90.
1662, FIRED IN THE OFFfdE OF-THE G'Oumy. RECORDER OF SAN D13GO COw-L M;;M= 1; 1915 OI:
THE SOUTMMST WHMCH WAS VACATED AND CT,OSM TO P48LIC USE BY 2380LUTION NO. 97-80
ISSUSA BY "1.BI, CITY C=CIL OF THS CITY OF =cTN=TA9, A CSRTIFIBD COPY OF 4PSICH
BECO,8DED OCTOBER 28, 1997 AS Fng NO. 1997-053982.2 OF OFPTCTAL RECORDS.
EXHIBIT
�� v
Addendum.Construdon period for Southland 7-11 Improvement Agreement
Ford Mance Company Ccnsttucbfon Timwlne:
Descrlptbn Time Frame
Commencement of Construction
Remove Tracts 2 weeks
RaR+OMPop(ace Air/Water Dispenser
SaMc*deiFence Sft ftom v♦owtng
Camtructton Period
Maintain barrimcle 47 weeks
Conctueton cf Construc ton
Construct new rod on oenopy 3 weeks
insol pours
Install landscapirig
EXHIBIT I
ScP-G��-2]JE i1 7-ELEVEN 1,"IC BIB 6S'41 P :
Y 'OC e_c
EXHIBIT J
7-Eleven Location 25766
When recorded,return to:
Ford Mance Co.
P.O.Box 910
Cardiff by the Sea, CA 92007
DRAINAGE EASEm[ENT
AND CATCH BASIN CONSTRUCTION AGREEMENT
THIS DRAINAGE FASEMENT AND CATCH BASIN CONSTRUCTION
AGREEMENT ("Agtu mr)is made by and between 7-Eleven,Inc., located at P.O. Box
711,Dallas,Texas 75221 ("7-Eleven"),and Ford Mince Company,located at P.O.Box 910,
Cardiff by the Sea, Califomist ("FoMaCo'). it shall be effective as of the date of the last
signature hereto.
RECITALS
WAEREAS, 7-Eleven.is the owner of certain real property located at 2211 Bast San
Elijo Avenue, Cardiff, California, legally described on Exbnbit "A" attached:Hereto ("Parcel
I"); and
WHEREAS,FoMaCo owns certain real property located 123-125 Chesterfield Drive,
Cardiff, California,legally described on Exhibit"B"attached hereto("Parcel 2");and
VY$.EREAS, 7-Eleven and FoMaCo arc parties to that certain Improvement
Agreerment dated ,2003 (the"hnprov==t Agreement")relating to improv=,ents
Fo?viaCo.intends to make to Parcel 2 which impact Parcel I;and
NIY EREAS,pursuant to the Improvement Agre=ent,the parties eed agrto enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein,the parties agree as follows:
1. RECITALS. The above recitals are hereby incorporated by reference.
2. GRALNT OF EASEMENT; PER'1ITTED USE.7-Eleven, as the owner of Parcel 1,
hereby grants to FoMaCo a non-exclusive easement and right-of-way to a portion of Parcel I
V
r
SEP-02-2003 11:25 7-ELEVEN I NC 656 694 0433 F.03/475
as legally described on attached Exhibit"C"and labeled as"Drainage Basement"on attached
Exhibit "D" (the "Drainago Easement Area'O. Such easement shall be used for the sole
purpose allowing the flow of surface water from Parcel 2 onto the Drainage Easement,A M&
3. CATCH BASIN CONSTRUCTION AND N UNTFNANCE; TEWORARY
CONSTRUCTION EASEMENT. Following the execution of this Agreement, and in
conjunction with the commencement of construction on Parcel 2,FoMaCo shall construct and
install a surface mounted and underground served catch basin connected to FOMACo's storm
drain system(the"Catch Basiei at the location shown on Exhibit"D"in accordance with the
Improvement Agreement and in compliance with all applicable building and zoning codes and
regulations, and FoMaCo shall allow no liens to attach to Parcel l as s result of construction
of the Catch Basin. FoMaCo,at its sole,cost=d expense,construct,maintain.and repair the
Catch Basin_
7-Eleven hereby grants to FoMaCo,its employees,contractors and agents,a temporary
construction easement allowing FoMaCo to enter Parcel l from time to time at such times and
m such locations within the Drainage Easement Area as is reasonably necessary for FOMaCo
to construct the Catch Basin. This temporary construction easement shall terminate upon the
earlier of: (a) the date the Catch Basin is accepted by the City of Cardiff or other municipal
_ agency with authority to regulate construction at the Parcel 2;or(b)one(1)year after the date
this Agreement is recrn-ded. 7-Eleven hereby grants to FoMaCo an easement over that portion
of the Drainage Easement Ares as is reasonably necessary for access to the Catch Basin for
the purpose of maintenance and repair of the Catch Basin following the construction thereof.
4. USE OF EASEMENT. FoMaCo agrees and covenants to exercise its riglas under this
Agreement in such a manner as not to unreasonably interfere with the use or enjoyment of Parcel
1.
5. INDFMNIFICAnON BY FO MACO. FoMaCo hereby agrees to indenmWy, defend
and hold harmless 7-Eleven, its employees and agents and respective successors and assigns
from and against any claim,cost,loss or expense made against or suffered by 7-Eleven resulting
from or relating to FoMaCo's failure to perform any of its obligations hereunder, including but
not limited to FoMaCo's obligation to pay all costs, expenses and fees relating to the
construction, installation, maintenance and repair of the Catch Basin, or arising from the
negligence or intentional misconduct of FoMaCo, its employees, contractors, agents and/or
invitees in the use of the Drainage Easement Area or from FoMaCo`s entry onto Parcel l for the
construction and installation of the Catch Basin.
143G036.1l8 7!09.Z08 2
tir-V,�-�V'.= 11 b -tLt'JtN 1Nk- ty 4 ',4 r.rJ4/vJJ
6. COVENANTS TO RUN WITH THE LAND. The rights and obligations granted
hercin shall be de=cd to nm with the land,aad the subsequent sale of Marcel l and/or Parcel 2
shall not affect these rights and obligations. Further,common owncrAip of 1.'arce1 1 and Parcel
2 (or any portion of either parcel) at any time now or in the future by any entity shall not be
deemed a merger, so as to abrogate or otherwise invalidate this Agteen=t. This Agteement
may be amended, modified or tcrnuuatod upon the written consent in recordable form of the
owmersofParcel1 and Parcel 2.
7. RECORDLYG. FoMaCo shall file a fully executed and acknowledged copy of this
Agreemem in the public land records of San Diego County,California
L 1 WITNESS WHEREOF, the parties have executed this Drainage Easesn=t and
Catch Basin.Constriction Agreement as of the dates below.
7-ELEVEN,INC.
Attcst:
By:
Name: Name:
Its:Assistant Secretary Its:Vice President or Attomey-in-Fact
Date:
FORD M.kNCE COI PANY
By:
Its:
Date:
1a3c034118'S09_?AE 3
tt�-Vii:=:-��_i�._, 11��b r'-tLtVtf•I l�l�_ _,�:r r,�;4 �4�,._. I-'.:�._„�_i�
State of Texas )
ss.
County ofDallas )
The foregoing Agreement was acknowlcdgcd before me,a notary public,this day
of ,2003 by
who personally sppmred before me and proved to me by
satisfaactory evidc=to be the_ and
resgcctively,of 7-Eleven,lnc.,and who executed the sauce on behalf of the corporation.
WITNBSS my hand and official seal.
Notary Public
Commission Expires
State of California )
County of San Diego )
on ,2003,before me, a rotary public, personally
appp=,ed personally known to me (or proved to nee on the
basis of satisfactory evidcuice) to be the person whose name is subs=ibed to the within
instrument and ackaowledged to me that hdshc executed the same in his/her authorized
capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of
which the person acted,executed the instrument.
WTI'NESS my}nand aad of5cial Seal.
Notary Public
Commission F—spires
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