Grant Deed 2007-0625812L,
RECORDING REQUESTED DY
FIRST AMERICAN TITLE
National Commercial Services
RECORDING REQUESTED BY,
)
MAIL TAX STATEMENTS TO
) THE ORIGINAL OF THIS DOCUMENT
SEP 25 2007
AND WHEN RECORDED MAIL TO:
) WAS RECORDED ON
NUMBER 2007-0625812
DOCUMENT
GREGORY J. SMITH, COUNTY RECORDER
Ocean Park Hotels - PWY, LLC
) SAN DIEGO COUNTY RECORDER'S OFFICE
27441 Tourney Road, Suite 220
) TIME: 4,34 PM
Valencia, California 91355
)
Attention: James M. Flagg
)
-
This docui _
pursuant to government Code Section 27383.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic
(the "Agency"), acting to carry out the Redevelopment Plan ("Redevelopment Plan") for the Paguay
Re velopment Project (the "Project"), under the Community Redevelopment Law of California, as
of 2007, hereby grants to OCEAN PARK HOTELS - PWY, LLC, a
Califon a limited liability company ("Developer"), the real property hereinafter referred to as the
"Site," described in Exhibit A attached hereto and incorporated herein, subject to the existing
easements, restrictions and covenants of record described there.
1. Reservation of Mineral Rights. Agency excepts and reserves from the conveyance
herein described all interest of the Agency in oil, gas, hydrocarbon substances and minerals of every
kind and character lying more than five hundred (500) feet below the surface, together with the right
to drill into, through, and to use and occupy all parts of the Site lying more than five hundred (500)
feet below the surface thereof for any and all purposes incidental to the exploration for and
production of oil, gas, hydrocarbon substances or minerals from said Site or other lands, but without,
however, any right to use either the surface of the Site or any portion thereof within five hundred
(500) feet of the surface for any purpose or purposes whatsoever, or to use the Site in such a manner
as to create a disturbance to the use or enjoyment of the Site.
2. Conveyance in Accordance With Redevelopment Plan, Disposition and
Development Agreement. The Site is conveyed in accordance with and subject to the
Redevelopment Plan for the Paguay Redevelopment Project which was approved and adopted by
Ordinance No. 117 and amended by Ordinance No. 415 of the City Council of the City of Poway,
and a Disposition and Development Agreement entered into between Agency and Developer dated
February 7, 2006, as amended by a First Amendment to Disposition and Development Agreement,
dated as of March 13, 2007 (as amended, the "DDA"), a copy of which is on file with the Agency at
its offices as a public record and which is incorporated herein by reference. The DDA generally
requires the Developer to construct and operate a new hotel on the Site (the "Hotel Facility"), and
other requirements as set forth therein. All terms used herein shall have the same meaning as those
used in the DDA.
3. Permitted Uses. The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Site or any part thereof, that upon the date of this Grant
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Deed and during construction through completion of development and thereafter, the Developer shall
devote the Site to the uses specified in the Redevelopment Plan and this Grant Deed for the periods
of time specified therein. All uses conducted on the Site, including, without limitation, all activities
undertaken by the Developer pursuant to the DDA, shall conform to the DDA, the Redevelopment
Plan and all applicable provisions of the City Municipal Code. The foregoing covenants shall run
with the land.
4. Restrictions on Transfer. The Developer further agrees that for the period
commencing upon the date of this Grant Deed and until the expiration of the term of the Operating
Covenant recorded concurrently herewith, no voluntary or involuntary successor in interest of the
Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall the
Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing
or lease of the whole or any part of the Site or the Hotel Facility thereon, nor shall the Developer
make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of
the hotel being operated upon the Site, except as permitted or approved by the Agency pursuant to
Section 603 of the DDA.
5. Binding on Successors. All of the terms, covenants and conditions of this Grant
Deed shall be binding upon the Developer and the permitted successors and assigns of the Developer.
Whenever the term "Developer" is used in this Grant Deed, such term shall include any other
successors and assigns as herein provided.
6. Nondiscrimination. Developer herein covenants by and for itself, its successors and
assigns, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government
Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall
the grantee or any person claiming under or through him or her, establish or permit any practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land.
Notwithstanding the immediately preceding paragraph, with respect to familial status, the
immediately preceding paragraph shall not be construed to apply to housing for older persons, as
defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the
immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the
Government Code shall apply to the immediately preceding paragraph.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such
deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination
or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, any person or group of persons on account
of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
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are defined in Sections 12926, 12926, 1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any
person claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land.
"Notwithstanding the immediately preceding paragraph, with respect to familial
status, the immediately preceding paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code. With respect to familial status,
nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of
Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of
the Government Code shall apply to the immediately preceding paragraph."
(b) In leases: "The lessee herein covenants by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons claiming under or through him or
her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group
of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in
the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or
vendees in the premises herein leased.
"Notwithstanding the immediately preceding paragraph, with respect to familial
status, the immediately preceding paragraph shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code. With respect to familial status,
nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4,
51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of
Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of
the Government Code shall apply to the immediately preceding paragraph."
(c) In contracts pertaining to the disposition of the realty: "There shall be no
discrimination against or segregation of, any person or group of persons on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined
in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or
any person claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
DOCSOG 121466001022345-0101
"Notwithstanding the immediately preceding paragraph, with respect to familial status,
the immediately preceding paragraph shall not be construed to apply to housing for older persons, as
defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the
immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the
Government Code shall apply to the immediately preceding paragraph."
7. Agency Right of Reentry. The Agency has the right, at its election, to reenter and
take possession of the Site, with all improvements thereon, and to cancel the Promissory Note and to
terminate and revest in the Agency the estate conveyed to the Developer if after the Closing and prior
to the issuance of the Release of Construction Covenants, the Developer (or its successors in interest)
shall:
a. fail to start the construction of the Hotel Facility as required by the DDA for a
period of sixty (60) days after written notice thereof from the Agency; or
b. abandon or substantially suspend construction of the Hotel Facility required
by the DDA for a period of sixty (60) days after written notice thereof from the Agency; or
C. contrary to the provisions of Section 603 of the DDA transfer or suffer any
involuntary Transfer in violation of the DDA, and such Transfer is not rescinded within thirty (30)
days of notice thereof from the Agency.
Prior to exercise of any right hereunder Agency shall give Developer written notice of
the event triggering such Agency right and an opportunity to cure such event as set forth in Section
501 of the DDA. The time periods set forth above shall be subject to extension as set forth in Section
602 of the DDA. Such right to reenter, terminate and revest shall be subject to and be limited by,
shall not defeat, render invalid or limit, and shall be subordinate to:
Any mortgage or deed of trust permitted by the DDA; or
2. Any rights or interests provided in the DDA for the protection of the holders
of such mortgages or deeds of trust.
Upon the revesting in the Agency of title to the Site as provided in this Section 7, the
Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the
Site as soon and in such manner as the Agency shall find feasible and consistent with the objectives
of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and
responsible party or parties (as determined by the Agency) who will assume the obligation of making
or completing the Hotel Facility, or such improvements in their stead as shall be satisfactory to the
Agency and in accordance with the uses specified for such Site or part thereof in the Redevelopment
Plan. Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage or deed
of trust encumbering the Site which is permitted by this Agreement, shall be applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the
City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in connection
with the recapture, management and resale of the Site or part thereof (but less any income derived by
the Agency from the Site or part thereof in connection with such management); all taxes, assessments
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and water or sewer charges with respect to the Site or part thereof which the Developer has not paid;
any payments made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge or prevent
from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or
acts of the Developer, its successors or transferees; any expenditures made or obligations incurred
with respect to the making or completion of the improvements or any part thereof on the Site, or part
thereof; and any amounts otherwise owing the Agency, and in the event additional proceeds are
thereafter available, then
it. Second, to reimburse the Developer, its successor or transferee, up to
the amount equal to the sum of (a) the costs incurred for the acquisition and development of the Site
and for the improvements existing on the Site at the time of the reentry and possession, less (b) any
gains or income withdrawn or made by the Developer from the Site or the improvements thereon.
Any balance remaining after such reimbursements shall be retained by the Agency as its
property. The rights established in this Section 7 are not intended to be exclusive of any other right,
power or remedy, but each and every such right, power, and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy authorized herein or now or
hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that the
Agency will have conveyed the Site to the Developer for redevelopment purposes, particularly for
development of a new business hotel facility and appurtenant uses, and not for speculation in
undeveloped land.
8. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest
permitted by paragraph 4 of this Grant Deed.
9. Covenants Run With Land. All covenants contained in this Grant Deed shall be
covenants running with the land. All of Developer's obligations hereunder, except as otherwise
provided hereunder, shall terminate and shall become null and void upon the expiration of the
effectiveness of the Redevelopment Plan. Every covenant contained in this Grant Deed against
discrimination contained in paragraph 6 of this Grant Deed shall remain in effect in perpetuity.
10. Covenants For Benefit of Agency. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants shall
run in favor of the Agency for the entire period during which such covenants shall be in force and
effect, without regard to whether the Agency is or remains an owner of any land or interest therein to
which such covenants relate. The Agency, in the event of any breach of any such covenants, shall
have the right to exercise all the rights and remedies and to maintain any actions at law or suits in
equity or other proper proceedings to enforce the curing of such breach.
11. Revisions to Grant Deed. Both Agency, its successors and assigns, and Developer
and the successors and assigns of Developer in and to all or any part of the fee title to the Site shall
have the right with the mutual consent of the Agency to consent and agree to changes in, or to
eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant
Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee,
beneficiary under a deed of trust or any other person or entity having any interest less than a fee in
the Site. However, Developer and Agency are obligated to give written notice to and obtain the
consent of any first mortgagee prior to consent or agreement between the parties concerning such
DOCSOC/ 1214660x3/022345-0101
changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical
classification, shall not benefit or be enforceable by any owner of any other realpropertywithin or
outside the Project Area, or any person or entity having any interest in any other such realty. No
amendment to the Redevelopment Plan shall require the consent of the Developer, but no such
amendment shall diminish or restrict the Developer's rights or expand the Developer's obligations
hereunder or under the DDA without the Developer's consent.
12. Counterparts. This Grant Deed may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.
AGENCY:
POWAY REDEVELOPMENT AGENCY, a public
body, corporate and politic
Rod Gould, Executive Director
ATTEST:
Secretary of the Agency
APPROVEDJounse
Stradling Yoe
uth
Agency Speci
DEVELOPER:
OCEAN PARK HOTELS - PWY, LLC, a
California limited liability company
By: � -.,k&
James M. Flagg, Manag
DOCSOC/ 1214660x3/022345-0101
EXHIBIT 'A
PARCEL A:
PARCEL 2 OF PARCEL MAP NO. 19954, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP THEREOF FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 21, 2006, AS INSTRUMENT
NO. 2006-0192773 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAID PARCEL 2 DESCRIBED AS FOLLOWS:
BEGINNING AT SOUTHWEST CORNER OF SAID PARCEL 2, THENCE ALONG WESTERLY
BOUNDARY OF SAID PARCEL 2, NORTH 01041'30" EAST, 109.79 FEET; THENCE NORTH
88018'30" WEST, 6.00 FEET; THENCE NORTH 01041'30" EAST 72.09 FEET; THENCE
NORTH 88024'04" WEST 41.16 FEET; THENCE NORTH 01035'56" EAST 38.92 FEET;
THENCE SOUTH 88024'04" EAST 62.83 FEET; THENCE INTO A NONTANGENT CURVE OF
RADIUS 61.50 FEET WITH A CENTER AT A BEARING SOUTH 21052'41" WEST, A
DISTANCE OF 12.87 FEET, WITH A DELTA OF 11059'12"; THENCE SOUTH 01035'56"
WEST 215.17 FEET; THENCE NORTH 88019'00" WEST 27.48 FEET TO POINT OF
BEGINNING.
TOGETHER WITH A PORTION OF PARCEL 1 OF SAID PARCEL MAP NO. 19954 DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1, THENCE ALONG THE
EASTERLY BOUNDARY OF SAID PARCEL 1, SOUTH 01035'56" WEST 61.08 FEET; THENCE
NORTH 88024'04" WEST FOR 17.00 FEET; THENCE SOUTH 01035'56" WEST 102.92 FEET;
THENCE NORTH 88024'04" WEST 45.09 FEET; THENCE TO NORTHERLY BOUNDARY OF
SAID PARCEL 1, NORTH 01035'56" EAST 164.00 FEET; THENCE SOUTH 88024'04" EAST
62.09 FEET TO POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS "PARCEL B" IN A CERTIFICATE OF COMPLIANCE
RECORDED DECEMBER 26, 2006 AS INSTRUMENT NO. 2006-0913338 OF OFFICIAL
RECORDS.
PARCEL B:
AN EASEMENT AND RIGHT OF WAY FOR ACCESS, INGRESS AND EGRESS AND UTILITY
PURPOSES OVER, UNDER ALONG AND ACROSS THAT PORTION OF PARCEL 1 OF SAID
PARCEL MAP NO. 19954 DELINEATED AND DESIGNATED AS "EASEMENT FOR ACCESS,
GENERAL UTILITY AND DRAINAGE PURPOSES FOR PARCEL 2 RESERVED HEREON".
NCS -228675 -SD 1 Of 1
COUNTY OF
On before me, L.b aneSliea-Nhtfy�NotaryPublic,
(Print Name of Notary Public)
personally appeared —Kn'n' L
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.
tDME SHEA WITNESS my hand and official seal.
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OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
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CAPACITY CLAIMED BY SIGNER
❑ Individual
❑ Corporate Officer
❑ Partner(s) ❑ Limited
❑ General
❑ Attorney -In -Fact
❑ Trustee(s)
❑ Guardian/Conservator
❑ Other:
Signer is representing:
Name Of Person(s) Or Enuty(tes)
DOCSOC/ 1214660x3/022345-0101
DESCRIPTION OF ATTACHED DOCUMENT
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Title Or Type Of Document
NUMOU Of Pages
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Date Of Documents
Signers) Other Than Named Above
STATE OF CALIFORNIA
COUNTY OF
gp } a� DDi before me, Sherr t e —o . til orre l l Notary Public,
On _
(Print Name of Notary Public)
personally appeared SQmes
❑ personally known to me
-or-
proved to me on the basis of satisfactory evidence to be the persono whose name(V)&are
subscribed to the within instrument and acknowledged to me thatQahe4hey executed the same
in l&hetitheir authorized capacity6i*, and that by4@/herhtreir signature(s)-on the instrument the
personiW, or the entity upon behalf of which the persons}acted, executed the instrument.
fHERRIE D. WDRREII
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WITNESS my hand and official seal.
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
0- Individual
❑ Corporate Officer
❑ Partner(s) ❑ Limited
❑ General
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Attorney -In -Fact
Trustee(s)
Guardian/Conservator
Other: _
Signer is representing:
Name Of Person(s) Or Entity(ies)
DOCSOC/1214660v3/022345-0101
DESCRIPTION OF ATTACHED DOCUMENT
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Title Or Type Of Document
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Number Of Pages
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ate Of Documents
Rod. -Inu! d
signer(s) Other Than Named Above