HomeMy WebLinkAbout1986-07-22; City Council; Resolution 8702Y
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RESOLUTION NO. 8702
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING A STIPULATION FOR
ENTRY OF REVISED JUDGMENT IN GROVE APARTMENTS V.
CITY OF CARLSEAD
The City Council of the City of Carlsbad, California
hereby resolves as follows:
1. The Stipulation for Entry of Revised Judgment in
Grove Apartments v. City of Carlsbad attached hereto is approved.
PASSED, APPROVED, AND ADOPTED at a regular meeting of
the City Council of the City of Carlsbad, California on the
22nd day of Julv by the following Vote, to wit;
AYES: Council Members Casler, Lewis, Kulchin and Pettine
NOES: None
ABSENT: Council Member Chick
7LyL L
MARY H. CASLER, Mayor
ATTEST:
ALETHA L. RAUTENKRANZ, City Cl]erk
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HAYUTIK, RUBINROIP, PRAM & KUPIETZKY Howard J. Rubinroit
2029 Century Park East, Suite 1515 Los Angeles, California 90067
(213) 277-5050
Attorneys for Plaintiff
GROVE APARTMENTS Ih'CESTMENT CO., and Cross-Defendant HFH, LTD.
SUPERIOR COURT OF THE STATE OF CALIFOFWIA
FOR THE COUNTY OF LOS ANGELES
GROVE APARTMENTS INVESTMENT CO. # )
a partnership, 1 1 Plaintiff )
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vs . 1 1 CITY OF CARLSBAD, a Municipal )
corporation, et al., 1 1 Defendants. )
1 CITY OF CARLSBAD, a Municipal )
corporation, 1 1 Cross-Complainant, )
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vs. 1 1 HFH, LTD., a partnership, KAMAR ) CONSTRUCTION CO., a partnership,)
and DOES I through XV, 1. inclusive, 1 1 Cross-Defendants. )
NO. N 9052
STIPULATION FOR ENTRY OF REVISED JUDGMENT
The parties to this Stipulation are Grove Apartrents Invest-
ment Co., the City of Carlsbad, the Vista Sanitation District,
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and Kamar Construction, This stipulation is made and entered
ir?to under the following circumstances:
WHEREAS, on or about October 9, 1964, a Grant of Easement of
Right-of-way from Rildan, Inc., a predecessor-in-interest to
plaintiff Grove Apartments Investment Co. ("Grove") to the City
of Carlsbad ("Carlsbad") and the Vista Sanitation District
("VSD"), as tenants in common ("Rildan Easement"), dated July 23,
1964, was recorded in the office of the County Recorder, County
of San Diego, in Book 1964 at Page 184917; and
WHEREAS, on or about October 9, 1964, a Grant of Easement of
Right-of-way from Fawco, a partnership, Bernard Citron
('Citron"), and Harry J. L, Frank, Jr. ('Frank"), all
predecessors-in-interest to plaintiff Grove, to Carlsbad and VSD,
as tenants in common ("Fawco Easement"), dated July 23, 1964, was
recorded in the Office of the County Recorder, County of San
Diego, in Book 1964 at Page 184918; and
WHEREAS, on April 6, 1977, the City Council of Carlsbad
adopted Ordinance No. 7047 and Ordinance No, 7048, which
Ordinances were superseded by Ordinance No. 9518 creating Chapter
21.49 of the Carlsbad Municipal Code and Ordinance No. 8073
creating Chapter.lS.05 of the CMC, and which imposed a moratoriur.
on the issuance of building permits in Carlsbad and a moratoriw.
on the acceptance of applications for and granting of discre-
tionary approvals for development projects in Carlsbad; and
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1 WHEREAS, on or about September 12, 1977, Grove Apartments i I 1 ("Grove"), a partnership, as successor in interest I Investment Co.
to Rildan Inc., Fawco, Citron, and Frank, filed an action in the
Superior Court entitled "Grove Apartments Investment Co., a
partnership, v. City of Carlsbad, a Municipal Corporation, Vista
Sanitation District, a Public Corporation," being Civil Action
No. N 9052 in the Superior Court for the County of San Diego,
North County Branch (hereinafter "Action No. N 9052"), seeking,
among other things, a judicial determination of its rights and
obligations under the Rildan and Fawco Easements and under
Ordinance Nos. 7047 and 7048, as amended and supplemented; and
WHEREAS, on or about July 31, 1978, pursuant to leave
granted by the Court therefor, Carlsbad filed a cross-complaint
for declaratory relief adding HFH, Ltd. ("HFH") and Kamar
Construction Company ("Kamar") as parties to this action; and
WHEREAS, the trial in the matter commenced in October 1978
and continued thereafter, except where recessed, until November
20, 1978 when all sides rested, with the presentation of numerous
oral testimony and the introduction of voluminous exhibits by all
parties; and
WHEREAS, on November 21, 1978, the Court, after hearing
argument, issued certain tentative rulings, and ordered further
briefing in said action: and
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WHEREAS, subsequent to November 21, 1978, the parties and
others, after numerous meetings and other negotiations, entere2
into an Agreement for Settlement of Lawsuit and Gutual Releases
(hereinafter the "Grove Settlement Agreement"), resolving, among
other things, all the issues in the action; and
WHEREAS, pursuant to said Grove Settlement Agreement the
parties stipulated to entry of a Judgment Pursuant to Stipulation
(hereinafter the "Grove Judgment"), which thereafter was duly
entered herein, and which provides for certain development rights
with regard to the property which is the subject matter thereof;
and
WHEREAS, the Grove Judgment provides, among other things,
that the rights provided therein shall terminate after the 10th
anniversary of events more specifically referred to therein, such
that it could be contended that said rights would cease sometime
in late 1989; and
WHEREAS, subsequent to the entry of the Grove Judgment, and
in reliance on the rights granted thereunder, Grove expended
substantial sums of money and incurred substantial liabilities in
developing or causing to be developed
property which is the subject matter of the Grove Judgment; and
certain of the real
WHEREAS, in order to develop and/or cause the 6evelopnent of
certain remaining portions of the real property which is the
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subject matter of the Grove Judgment, ant! in reliance on rights
granted thereunder, Grove entered into az agreenent with Odmark
Development CoEpany ("Odrmrk") , which, as fror;. time to tine
amended (the "Grove Odmark Agreement"), provides for the sale to
Odmark of Parcels D and E of the property, Parcel E being
comprised of sub-parcels E and E Prime; and
WHEREAS, pursuant to the Grove/Odmark Agreement, and in
reliance on rights granted under the Grove Judgment, Odmark,
expended substantial sums of monies and incurred substantial
liabilities in attempting to develop Parcels D and E, including
preparing certain designs and plans for a project involving the
construction upon Parcel E of 216 condominium units (the
"proposed condominium project"), thus involving a project density
of 10.8 dwelling units ("dus") per acre, excluding designated
open space and 40% slopes; and
WHEREAS, the Land Use Element of the General Plan of the
City of Carlsbad designates the area in which Parcel E is located
as RMH, thus calling for densities of 10-20 dus/acre, and the
newly revised General Plan density for the area calls for
densities of 8-15 dus/acre; and
WHEREAS, the area in which the property is located is zone6
Planned Community, and, as such, is required to be developed
under a master plan, which master plan (the "Hosp Grove Master
Plan") would permit 240 units to be developed on Parcel E, an6
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WHEREAS, prior to January 22, 1986, Odmark submitted to the
Planning Department of the City of Carlsbad an Environmental/
Initial StuCy including nunerous reports and supplemental reports
evaluating potential environmental impacts of and corresponding
mitigation measures for the proposed condominium project; and
WHEREAS, the Planning Director of the City of Carlsbad,
after determining that the proposed condominium pro-j-ect would not
cause any significant impacts because potential impacts had been
mitigated, issued a Mitigated Negative Declaration, dated January
26, 1986, which, on February 5, 1986, was recommended .for
approval by the Planning Commission of the City of Carlsbad; and
WHEREAS, Odmark applied to the Planning Commission of the
City of Carlsbad for approval of a two-lot tentative map and
216/unit condominium permit with regard to the project, and
WHEREAS, by Planning Commission Resolution No. 2538, the
Planning Commission of the City of Carlsbad recommended approval
of a two-lot tentative map and 216-unit condominium permit for
the project; and
WHEREAS, on March 18, 1986, the City Council of 'the City of
Carlsbad held a public hearing to consider the request by Odmark
to approve the tentative map and condominium unit permit, and to
further consider approving the Mitigated Negative Declaration
issued by the Planning Director and recommended for approval by
the Planning Com,ission; and
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IVHEREAS, a number of members of the public appeared at sait
hearing to challenge the project, to advocate the acquisition by
the City of Parcels D, E, and F {or portions thereof) for
recreational purposes, and/or to question the conclusions of the
Planning Director and Planning Commission leading to the issuance
of the Mitigated Negative Declaration; and
WHEREAS, by Resolution No. 8468, the City Council of the
City of Carlsbad disapproved the Mitigated Negative Declaration,
and directed the preparation of an Environmental Impact Report
for said project; and
WHEREAS, in connection with said action, the City Council
voted to cause a review of both the General Plan and Hosp Grove
Master Plan, and to consider the possibility of acquiring some or
all of Parcels D, E and F; and
WHEREAS, subsequent to the foregoing, Grove and Odmark
placed the City on notice of their position that the foregoing
actions of the City Council in disapproving the Mitigated Nega-
tive Declaration, requiring that an Environmental Impact Report
to be prepared concerning said project, and causing the Hosp
Grove Master Plan and General Plan to be reviewed were unlawful
and in violation of their rights, including their rights to
development under the Grove Judgment entered in this action; an2
WHEREAS, subsequent to the actions of the City Council
6escribeZ hereinabove, rmkers of the pcblic have continilec to
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express a desire to attempt to acquire Parcels D, E and F, or
some portion thereof, for park and/or recreational purposes, az5
Grove and Odnark have continued to assert their rights to deve,:;
said parcels; and
WHEREAS, the citizens of the City of Carlsbad have
circulated petitions to qualify for inclusion on the November,
1986 ballot a measure which, if passed and valid, would have the
effect of severely limiting the number of residential units which
could be developed in the City of Carlsbad commencing in January
1987 and continuing until at least 1995; and
WHEREAS, the City of Carlsbad has been studying, has already
implemented and may, in the future, further implement measures
and methods which have and/or may have the effect of limiting
and/or restricting the timing and/or number of residential units
which could be developed in the City of Carlsbad commencing in
January 1987 and continuing until at least 1995; and
WHEREAS, the City of Carlsbad has imposed and may in the
future further impose a moratoria which restricts or prevents
pursuing certain developmental activities and/or seeking certair.
developmental approvals and/or
WHEREAS, since in or abou
permits; and
April, 1986, repre entatives of
the City of Carlsbad, Grove, and Odmark have met and otherwise
communicated on numerous occasions in order to resolve the
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disputes which exist between them arising out of the foregoing; !
and
WHEREAS, the Gro'e Group, on the one hand, and the City of
Carlsbad, on the other, disagree as to the extent and legal
effect of the rights and obligations concerning development whict
are provided for in Grove Judgment, in that, among other things:
a) The City of Carlsbad contends that such rights al.2
obligations relate only to the ability of the "Private Parties"
as defined therein (which include the Grove Group) to proceed
with development notwithstanding a sewer moratorium and the right
to sewer service, but
b) The Grove Group contends that it has rights there-
under, including vested rights, to proceed with and complete full
development of the property referred to in the Grove Judgment by
August 28, 1989, in accordance with the Hosp Grove Master Plan
and to the densities referred to in the Grove Judgment; and
WHEREAS, the City of Carlsbad, Grove, and Odmark have
reached a Settlement designed to resolve the disputes which exist
between them (hereinafter the "Carlsbad/Grove/Odmark Settlement")
and which, among other things, provides for the following:
1. That the citizens of the City of Carlsbad will De
presented the opportunity, by a ballot measure to be placed on
the h'ovember 4, 1?8€ ballot, to vote to acqcire Parcels 0, E acS
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F for an agreed upon purchase price, which purchase would be
implemented and funded under circumstances and pursuant to
mechanisms fuily set forth iri an Agreemest for Purchase and Sale
of Real Property which the parties hereto are executing
contemporaneously herewith (the "Purchase Agreement");
2. That, pending the results of said ballot measure and
thereafter, Grove and/or Odmark will be permitted to pursue
efforts to develop Parcels D and E in a certain manner describe2
and designed in the Revised Judgment provided for herein as the
"Proposed Judgment", including seeking and/or applying for any
necessary governmental approvals or permits therefor, and that
the City of Carlsbad will utilize its best efforts to facilitate
the same;
3. That, if said ballot measure fails to obtain the
requisite vote necessary for passage, but if the City of Carlsbad
issues the Discretionary Government Approvals (as defined in the
Revised Judgment provided for herein), then:
a) The City of Carlsbad will purchase Parcel F for an
agreed upon purchase price, which purchase would be implemented
and funded under circumstances and pursuant to mechanisms fully
set forth in the Purchase Agreement;
b) Grove and/or Odmark will dedicate in fee that
portion of Parcel E which is not the subject of the Proposed
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Development (as defined in the Revised Judgment provided for
herein); and
fact and conclusions of law and/or rights to a statement of
decisior, ar,d/or similar or related rights in connecticn with the I j
c) Grove and/or Odmark will have vested rights to
develop the Proposed Development in accordance with the Revised
Judgment provided for herein; and
WHEREAS, if the Purchase Agreement is fully consummated an6
performed by the parties thereto, it will be unnecessary to
resolve the disputes between the parties as to the effect of the
Grove Judgment, but, if not, the parties desire to reserve all
their rights to litigate the same; and
WHEREAS, to implement and facilitate the Carlsbad/Grove/
Odmark Settlement, it is necessary to clarify, modify and revise
the Grove Judgment previously entered herein;
THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and
between the parties, through their attorneys:
1. That the Court may enter a Revised Judgment in this
2211 action in the form of, and providing for the matters contained
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in, Exhibit 1 attached hereto, which is, by this reference, made
a part hereof;
2. That the parties hereto waive any and all findings of
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Revised Judgment, and any and all rights to appeal therefrom or
any part thereof;
.3. That if the City of Carlsbad fully complies with its
obligations under the Purchase Agreement and the Revised
Judgment, but the Proposed Development nevertheless is not
achieved or is delayed because of acts or omissions of parties
other than the City of Carlsbad, its officers, employees, or
agents, the City of Carlsbad shall bear no responsibility
therefor; and
4. That in any subsequent proceeding between the parties
hereto arising out of an alleged breach of the Purchase Agreement
and/or alleged failure to comply with the Revised Judgment,
neither of the parties shall have the right to recover or seek
recovery of monetary damages from the other, and their sole
recourse shall be to seek non-monetary relief, including, but not
limited to, by way of writs of mandamus and/or prohibition,
declaratory relief, injunctive relief, specific performance,
contempt, or similar remedies; and
5. In any such subsequent proceeding, the agreements
concerning reservation of rights and other matters contained in d
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letter agreeEent betweer, the parties, dated. July - I 1980,
attached hereto as Exhibit 2 shall apply.
DATEI? :
DATED :
DATED :
DATED : July !I,
2:18:Stip
1986
1986
1986
HAYUTIK, F.UBIKROIT, PRAW & KUPIFTZKY
BY Hoxar2 J. Rubinroit
Attorneys for Plaintiff Grove
Apartments Investment Co.
CARLSBAD CITY ATTORNEY
RV
Vincent Biondo, Jr.
Attorney for the City of Carlsbad
VISTA CITY ATTORNEY
BY
Attorneys for Vista Sanitation
District
DAUBNEY and BANCHE
*L -
NicholaS Banche
Attorneys for Cross-Defendant
KAMAR CONSTRUCTION
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letter agreement between the parties, dated July - , 1986,
attached hereto as Exhibit 2 shall apply.
DATED: July - , 1986 HAYUTIN, RUBINROIT, PRAW & KUPIETZKY
BY Howard J. Rubinroit
Attorneys for Plaintiff Grove
Apartments Investment Co.
DATED : July 23, 19 8 6 CARLSBAD CITY ATTORNEY
DATED: July - , 1986 VISTA CITY ATTORNEY
BY
Attorneys for Vista Sanitation District 4. i
DATED: July , 1986 DAUBNEY and BANCHE -
BY Nicholas Banche
Attorneys for Cross-Defendant
KAMAR CONSTRUCTION
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HAYUTIN, RUBINROIT, PRAW & KUPIETZKY Howard J. Rubinroit
2029 Century Park East, Suite 1515 Los Angeles, California 90067
(213) 277-5050
Attorneys for Plaintiff GROVE APARTMENTS INVESTMENT CO. ,
and Cross-Defendant HFH, LTD.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
GROVE APARTMENTS INVESTMENT CO. ,)
a partnership, 1 1 Plaintiff, )
vs 1 1 CITY OF CARLSBAD, a Municipal ) corporation, et al., 1 NO. N 9052 1 Defendants. )
CITY OF CARLSBAD, a Municipal 1 REVISED JUDGMENT PURSUANT corporation, TO STIPULATION
1 Cross-Complainant, ) 1
vs. 1 1 HFH, LTD., a partnership, KAMAR )
.CONSTRUCTION CO., a partnership,) and DOES I through XV,
inclusive, 1 1 Cross-Defendants. )
1
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The Court, having read and considered the Stipulation for
Entry of Revised Judgment, and being familiar with the evidence
(oral and documentary), records and files in this action,
ORDERS, DECREES AND ADJUDGES as follows:
1, Grove Apartments Investment Co. ("Grove") and/or
H.F.H., Ltd. ("H.F,H,"), and/or their successors, assigns, or
designees, including, but not limited to Odmark Development Co.
("Odmark") (all of the foregoing hereinafter sometimes referred
to as the "Grove Group") shall be and are entitled to, and will
diligently, pursue applications for the development of the
following real property ("Property") for the following purposes:
a, Hosp Grove Parcel E (which is comprised of Sub-
Parcels E and E Prime, and which is more particu-
larly described in Exhibit "A" hereto), for the
purpose of constructing a retail commercial
development consisting of no less than 95,890
square feet of gross leasable floor area upon 8.8
usable acres pursuant to C-2-Q Zone (Carlsbad
Municipal Code Chapters 21.18 and 21.061, in the
general area on Parcel E adjacent to Marron Road
on bo.th sides of Monroe Street, and with access
and egress approved by the Grove Group, which
approval shall not be unreasonably withheld; and
b. HOSF Grcve Parcel D (which is more particularly
.- ,r~..--Lt.3 - c-y. lr' E:,:'r.lb;t el~'' heret.3) , for tke carcase
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of constructing thereon 108 residential dwelling
units in one or more buildings not exceeding three
stories in height.
2. Notwithstanding any moratoria or other restriction as
to its ability or right to accept applications or issue entitle-
ments for the improvement or development of real property
presently in force or hereinafter enacted by the City of
Carlsbad, the City of Carlsbad, and any and all of its depart-
ments, agencies, or officials having jurisdiction or responsi-
bility for the same, shall, upon the proper filing, submittal
and/or application of or for said approvals or permits, forthwith
accept such applications and proceed to process the same fully,
diligently and timely.
3. Without limiting the foregoing, the City of Carlsbad
with respect to the development referred to in paragraphs la and
lb hereinabove (hereinafter the "Proposed Development"), shall
forthwith:
a. Undertake all necessary and appropriate review and
evaluation of the potential environmental impact
of the Proposed Development and of any other
approval or other matters concerning or necessary
to implement such Proposed Development for which
review and evaluation of the potential environ-
mental impact is necessary or required, in
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accordance with the California Environmental
Quality Act and Title 19 of the Carlsbad Municipal
Code as presently enacted, and utilize its best
efforts to cause the environmental processing and
evaluation to be obtained in conformity with all
applicable legal requirements prior to November 4,
1986;
b. Undertake all necessary and appropriate steps,
including, but not limited to, accepting and
expeditiously processing any and all proper
filings, submittals, or applications by the Grove
Group in connection therewith, to effect (i) an
amendment of the Hosp Grove Master Plan and the
General Plan, (ii) a rezoning of that portion of
Hosp Grove Parcel E which is part of the Proposed
Development to a C-2-0 zone, and (iii) the
issuance of a planned development permit for Hosp
Grove Parcel D and a site plan approval for Hosp
Grove Parcel E, and otherwise permit a planned
development of such portion of Hosp Grove Parcel E
and Parcel D to the end that such amendments,
rezoning, approvals and permits will be consistent
with and authorize the Proposed Development, and
each component thereof. City of Carlsbac? shall
further permit the filing of a tentative subdivi-
sion map respecting the Property, as may be I
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necessary to permit and implement the Proposed
Development.
best efforts to cause the foregoing to occur prior
to November 4, 1986. As used herein, the
term ‘Discretionary Governmental Approvals’ shall
mean the actions described in clauses (i) , (ii)
and (iii) above, and the approval by the City of
Carlsbad of a tentative subdivision tract map for
the Property subject only to such conditions of
approval as are customarily applied at the present
the to like or similar developments, provided
such conditions of approval do not prohibit or
substantially impair the timely completion of the
Proposed Development.
that Grove Group shall dedicate or cause to be
dedicated (concurrently with the recordation of a
tract map for Parcel E) that portion of Parcel E
which is not the subject of the Proposed Develop-
ment, but shall not require that Grove Group
improve any portion of Monroe Street which is
contiguous to that portion of Parcel E so
dedicated.
that such improvement of Monroe Street shall be
otherwise required, the City shall cause such
improvement at its sole cost and expense, and at
no cost or expense to the Grove Group.
City of Carlsbad shall utilize its
However, City may require
If the City of Carlsbad determines
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c. Approve all necessary and appropriate public
easements for water and utilities as are within
the jurisdiction of the City to approve and which
are necessary to service the Proposed Development.
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d. Accept, and expeditiously and in good faith
process subject to satisfaction by the Grove Group
of all conditions of the approvals and other
conditions therefor which properly could be
imposed as of the date hereof pursuant to this
Revised Judgment, applications and submittals for
all discretionary, governmental approvals and all
ministerial permits or approvals including, but
not limited to, grading permits, building permits,
and certificates of occupancy.
.
e. Allow amendment by the Grove Group of any specific
plans or master plans, and maps related thereto,
heretofore filed and approved with regard to or
affecting the development of Parcels D and E, in
such manner as may be necessary to adjust the
number-of dwelling units in any such parcel or tc
change the design approach in accordance with an2
so as to permit the Proposed Development of
Parcels D and E. All such amendment(s) must be
consistent with presently enacted laws and good
planning;
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f. Provided all applicable City requirements which
properly could be imposed as of the date hereof
pursuant to this Revised Judgment are met, permit
the Grove Group to record a final map for any and
all of Parcels D and E, and toll the time limita-
tions for all other discretionary permits or
approvals by a period of time equal to the length
of time for which any of said Parcels does not
have sufficient sewer capacity necessary for the
development of any such Parcel.
4. After the Grove Group has obtained the Discretionary
Governmental Approvals pursuant to the foregoing, the Grove Group
shall have the vested right to commence, complete, implement, use
and occupy the Proposed Development, in accordance with the
Discretionary Governmental Approvals. The City of Carlsbad shall
not, for a period of time not less than three (3) years following
the issuance of the last Discretionary Governmental Approvals,
except upon prior consent of the Grove Group, modify or impose
new requirements for further discretionary approvals, or take any
other action, which prohibits, substantially impairs, or is in
confJict with the Proposed Development. However, (1) City may
apply new rules, regulations, and policies for the Proposed
Development which are not in conflict with presently existing
rules, regulations, and policies, and which do not delay or in
any manner materially and adversely affect the Proposed
Development, (1:) the Grove Group has the right to seek the
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revision of such rules, regulations, and ordinances otherwise
applicable to the Proposed Development, and (iii) if the Grove
Group shall breach its obligations to convey Parcel F or the
Property, as the case may be, pursuant to the Agreement of
Purchase and Sale of Real Property executed by City and Grove
Group dated as of July 15, 1986, any approvals theretofore issued
by the City in accordance with this Judgment may not be utilized
by the Grove Group except pursuant to further order of the Court.
5. The vested right of the Grove Group to develop the
Proposed Development, as aforesaid, shall not be subject to
frustration, delay, impairment and shall not in any manner be
adversely affected by any moratorium or growth limiting or
similar measure presently or hereafter enacted by the City of
Carlsbad, or imposed pursuant to any ballot measure adopted by
the citizens thereof. The City of Carlsbad is estopped and
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precluded from asserting the application or effectiveness of any
such moratorium or other measure to or concerning the Proposed
Development.
Proposed Development as being subject to any such moratorium,
growth limiting, or similar measure, it shall give such priority
To the extent that the City purports to treat the
to the Proposed Development thereunder as is necessary to permit
the full imp.lementation of the Proposed Development to the same
degree as if the Proposed Development were exempt therefrom.
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Equivalent Dwelling Units ("E.D.U. "1 of capacity in the Encina
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Sewage System under this Revised Judgment, which shall be
distributed as follows:
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Parcels D and E 276 E.D.U.'s
Parcel F 180 E.D.U.'s
May Stores Noncoastal 20 E.D.U.'s
Zone Commercial Parcels
May Stores Coastal Zone 200 E.D.U,'s
Commercial Parcel
May Stores Coastal Zone 100 E.D.U.'s
Commercial Parcel $150 per E.D.U.
Up to 100 Statutory Fee
additional for Charge
E.D.U.'s for sewer
capacity, if
any, at time
7. Payment, if any, by the Grove Group, for the 676
E.D.U.'s of capacity shall be made as follows:
Parcels D and E 276 E.D.U.'s
$150 per E.D.U.
Parcels F 180 E.D.U. .'s
$150 per E.D.U.
May Stores Non-Coastal 20 E.D.U.'s Free
Zone Commercial Parcel
of purchase. I i
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8. The Grove Group shall be subject to all taxes, fees, and
charges of general application for their activities within the
City of Carlsbad sewer service area including ownership and
development of land, except that any taxes (other than Ad Valorem
property taxes), fees, or charges, or any portions thereof,
earmarked for sewage disposal purposes, or charged or used in
lieu thereof, shall not be payable by the Grove Group with regard
to any development utilizing the 676 E.D,U,'s of capacity set
forth in Paragraph 6 above, other than those specifically
provided for in Paragraph 7 above and the monthly sewer service
charges applicable to all users in the Carlsbad sewer service
area of the Encina System.
9. The Grove Group shall, pursuant to the terms of this
Judgment, have the right to connect up to 676 units of develop-
ment to manholes located within the Unit B outfall trunk sewer
line. Said parties shall further have the right, as an alterna-
tive, to connect not more than 400 of said E.D.U.'s to the sewer
line located in El Camino Real in lieu of connecting such number
of connections in said trunk sewer line, Said parties shall be
responsible for any and all reimbursement fees incurred by
connecting to the El Camino Real Sewer Line as well-as all actual
costs of physical attachment to the reconstructed or the El
Camino Real sewer lines.
10. The Grove Group shall have the right to accumulate the
E.D.U.'s to be received pursuant to this Judcmen-. The right to 1
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receive and to accumulate such E.D.U.'s, and the right to either
free or reduced fees and charges for such E.D.U.'s received or
accumulated as provided for in this Judgment shall: (1) be
transferable between the parcels referred to in paragraphs 6 and
7 (2) shall run with the land, and (3) shall be fully assignable
but only so as to run appurtenant to the parcels referred to
in paragraphs 6 and 7 hereinabove.
11. If they have not already done so, Carlsbad and the Vista
Sanitation District shall take whatever steps are necessary to
cause the vacation and reversion to the original grantors, or
their successors or assigns, of the following easements:
a.
b.
C.
Grant of Easement of Right-of-way, dated July 23,
1964, from Citron, Frank, and Fawco to VSD and
Carlsbad, a copy of which ia attached hereto as
Exhibit "C";
Grant of Easement of Right-of-way dated July 238
1964 from Rildan to VSD and Carlsbad, a copy of
which is attached hereto as Exhibit "D"
Grant of Easement of Right-of-way, dated May 8,
1972, from Citron, Frank, and Fawco to VSD and
Carlsbad, a copy of which is attached as Exhibit
"E" ;
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d.
e.
Easement, dated May 8, 1972, from Citron, Frankf
and Fawco to VSD and CarlSbad, a copy of which is
attached hereto as Exhibit 'Fa;
Easement, identified on Hap No. 8956, recorded
August 11, 1979, from PCR, Citron, Frank, Barman,
Residuary Trust, Marital Trust, and May Stores to
VSD and Carlsbad.
12. Except as otherwise provided in paragraphs 13 and 14
hereinbelow, and except upon a breach or failure by the City of
Carlsbad to comply herewith, the rights and obligations provided
for in this Revised Judgment shall expire, and this Revised
Judgment shall terminate and be of no further force and effect on
August 28, 1989.
13. Notwithstanding Paragraph 12 hereof:
A. Should the "Property Close of Escrow" occur as
provided for in the Agreement for Purchase and
Sale of Real Property, dated as of July 15, 1986,
between the Grove Group and the City of Carlsbad
(the "Purchase Agreement") ,. any and all develop-
ment rights (but not the rights and obligations
regarding E.D.U.'s and other sewer-related rights
and obligations) provided: for herein in connection
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with Parcels D, E, and F only shall terminate
immediately;
14. Notwithstanding Paragraphs 12 and 13 hereof:
A. Should the "Parcel F Close of Escroww not occur as
provided for in the Purchase Agreement, and should
said Purchase Agreement therefore be terminated,
then:
(1) The rights and obligations provided for in
this Revised Judgment shall continue in
effect until April 30, 1990.
The City of Carlsbad shall allow amendment by
the Grove Group of any specific plans or
master plans, and maps related thereto, filed
and approved with regard to or affecting the
development of Parcel F in such manner as may
be necessary to adjust the number of dwelling
units therein or to change the design
approach in accordance with and so as to
permit development according to the presently
existing density for Parcel F. All such
amendment (s) must be consistent with present-
ly enacted laws and good planning; and
(2)
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(3) Provided all applicable City requirements
which properly could be imposed as of the
date hereof pursuant to this Revised Judgment
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are met, the City of Carlsbad shall permit
the Grove Group to record a final map for
Parcel F, and toll the time limitations for
all other discretionary permits or approvals
by a period of time equal to the length of
time for which said Parcel does not have
sufficient sewer capacity necessary for the
development of such Parcel.
B. Should the "Parcel F Close of Escrow" occur as
provided for in the Purchase Agreement, any and
all development rights (but not the rights
regarding E.D.U,'s and other sewer-related rights)
provided for in connection with Parcel F only
shall terminate; and
C. The City of Carlsbad shall:
(1) Allow amendment by the Grove Group of any
specific plans or master plans, and maps
related thereto, heretofore filed and
approved with regard to or affecting the
development of the May Stores commercial
parcels (which are more particularly
described ir! Exhibit "A" hereto), in such
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manner as may be necessary to adjust the
number of dwelling units in any such parcel
or to change the design approach in
accordance with and so as to permit the
development according to presently existing
densities of the May Stores commercial
parcels. All such amendment(s) must be
consistent with presently enacted laws and
good planning; and
. (2) Provided all applicable City requirements
which properly could be imposed as of the
date hereof pursuant to this Revised Judgment
are met, permit the Grove Group to record a
final map for any and all of the May Stores
commercial properties, and toll the time
limitations for all other discretionary
permits or approvals by a period of time
equal to the length of time for which any of
said Parcels does not have sufficient sewer
capacity necessary for the development of any
such Parcel.
15. No damages shall be awarded to any of the parties to
this action for any matter or cause occurring prior to the entry
of the original Judgment herein, and each of the parties to this
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action shall bear its own costs and fees, including attorneys'
fees, with regard thereto.
DATED :
JUDGE OF THE SUPERIOR COURT
LYUIRIT A
kteptlqg therefrm that portio0 dcrribcd 86 follon:
ttceptiag therefra m 84 foot wide rtrip of hd, 42-o[! feet uch ride of tbe
follovlpg described CeDtefUPe:
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A FAXZEL C' u;"..'3 SITUATE IN TS1E CIW CF CARLSSA3
CCUNTY Gf SAX DIESO, STATE GF CALIFORNIA, 6EINS A
PORTION OF SECTION 21, TOWNSiliP 11 SOUTH, RANGE 4 WEST,
SAN eERMR9INO MERDIAN, ACC3Ri3ING TO OFFICIA!, PLAT
Tt+EC=CF AS3 FS?,TIONS OF LOTS Z2 TSROUGH 35 INCLUSE
Ah'3 GF EiiCkiYr"TC?'S ST.EET AS VACATED AX3 CLOSED TO
Fd3LIC USE, AlL OF E332 EUCALY.FTUS FOEST C0,WPAhY'S
TR4CT kCCSF9IsG T3 NAP TREECF Nc). 1135, FIE0 IN
OFFICE OF THE COUNTY RECOf?3ES OF SAN DIEGO COLI:L?y,
BEING MORE PARTICUMLY DESCRISED AS FOLLONS: .
BEGINNING AT TiE SOUTHEAST COZNER OF THE NORTH HALF
OF THE NORTFI=&T QUARTER OF SECTION 31, TOWNSHIP 11
SOUTH, RANGE 4 WEST; THENCE ALONG TCiE: SOUTH LINE OF
SAID NORTH HALF NORTH 89°42'19'TWST, 1716.40 FEET TO T?+E
NORTI-iAEST CORNER OF CA!!IBAD TRACT NO- 78-18 SAID PSINT
BEING l7-E TRUE PSINT OF SEGINNTNG; THENCE
SOUTH 0~25'14~~ VESTa 206.65 FEET ALONG THE WESTERLY LINE
OF SAID TRACT; THENCE NORTH 89O42'19" WEST, 219.0a FEET;
THENCE SOUTH 0°25'14" WEST, 934.82 FEET TO A POINT IN Ti=
NOR7HERLY LINE OF MARRON ROO3 (82 FEET WIDE), SAID P3IibJ-i-
BEING IN A NONTAXGENT CURVE CONCAVE TO THE NORTHEAST
FAVTIL'G C, -IUS OF 75S.03 FEET, A WIAL LIkE OF SAD CURVE
TEXXJGILI SAID PC!NT BEkPING SDUTH 3O12'22" EAST; TEZNCE
WESTERLY ALCNS SAD CURVE THROUGH A CENT.R4L ANGLE OF
4S0CS'CS", A DISTAXCE OF 635.81 FEET; THENCE
NORm 45"0$'15" VEST, 130.00 FES TC THE BEGiNXING OF A
TARSENT CL'2VE CONCAVE TO TP.E NCZTHZAST MWNS A
ROIUS CF 553 .C3 FEET; THENCE NCXTHWESTE.XLY ALONS SAID
CURVE THXDUGX A CENT??L ANGLE OF 31 o04'5.9", A !3IS?ANCE
OF 3C2.72 FEET; TilENCE NC2Td 13*E9'17" W-ST, IcC).El FEET
TO THE SEGIXXIXS OF A TANSENT CUZVE COXCAVE TO TiiE mST
HAVING A R43IUS OF 553.03 FEET; TuiEiVCE N04THE.XLY ALCNG
SAID C'3RVE THF?SL'GF! A CEkTRkL ANGLE OF 21 023'03'', A
DISTANCE OF 2C2.25 FEET TO TZE BZSINNING Of A CC.L\nPaui\3
CURVE CCNCAE T3 TiiE EAST EAViNG A R49!US OF 733.00
FEET; THENZS K'SZT3E.FILY ALCNG S.4D CUR'/€ T%;I3US? A
EXHIBIT B
Exhibit B not use6
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For 2nd in consideration of L.?e sum of OXE AYD N0/100 IX)LL4ZS (SL, 00) ana other valuable co2sidcrztion, BE-KYA2ZD CI'YF:OX, t rair:eC
man, L4RLPY J, L, FRnKK, JR., a rnarried ~m, 2nd F-AP;CO, 2 pzrtzerskip,
as grantor, does hereby grant to VISTA SAXI>4EOX DISTRICT and CITY 0'
CA2LSBAD, as tcnanG in common, their successors and assigns, zn ea,se=est
of right of way upon, over, under and across the lands hereinafter described,
to iqstall, construct, reconstruct, operate, replace, repair, maintalk and use
a sewer pipeline, together with its necessary fixtwcs and appurtrtnznces, together with the right of iagress faere to and egress therefrom, to 2nd along
said right of way by practical roctc or routes in, UPOG, over and across the
he t eioafter described lands ,
The parcel upon which said easeneat of right of way is graxlted is
situated in &e County of San Diego, State of Ctlifornia, and is more particularly
described as follows, to wit: *
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A IO-foot wide e'cerkqt ctong and across a portion of the north &If
or the north half of Section 31 , Tomhip I1 Sauth, we 4 wst,
San 8ernar;dino Base arA Meridiur, in the City of Ocemside, Comb
of San Diego, State of California, accodw b United StaAks
Goverrmen t Sumy zppmved April 5, 7891a said easement being
bounded and described as fjllovs:
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-- - . Tk south :&feet of &id mrtt hzlf cf north half of said Seeion 31;
the easterly termimztion of said IO-foot strip bei- the westerly Iine
of the \and descr;b+C in Pzrcet 2 OF Deed to tka City OF Oceursid=,
recarded April 20, 1959 as Document No. 77257 in Book 7713, Pass it3,'
Offici& Records of szid County; ths westerly &=rrminstion of szid IQ-kot
strip bzing 40-fs2t west of and parallel with tk?e westerty line of &&t
pzrcct of land descriSed as the north 45.00 feet or' ths west 100.00 fet -
of ths east 810.00 feet of Lot 32 of tfosp Eucztyphs Forest Tract
Number I, said parcel bei,ng described in Grmt of Ezsemsnt of Zight
of Way rekorded OctoSsr 9, 1984 zc Document No, 184978 in OrLCkt
Fkcords of said County.
Tne said grzat is spec-Xczlly made by grzntor 2nd accepted by grmkt
-. sGbject b fit followkg tcrxs and con2iEom:
.I. In the event the grzntee, their successors or 2ssigns, shall cfase
utilize +&e easernent S,are>* grarzted. for a perio? oi' ten (LO) years at azy
parcel by grantee for the purposes granted herein,
4. Grantor, with prior written notice to grantee, shall &.re the ri*t
to increase or decrezse, or permit to be increased or decreased, the
existing ground elevations of the parcel above described; provided, said
increase or decrease shall in no'way interfere uith or restrict the use of
said parcel by grantee for the purposes granted hercia; provZcd, further,
that in the event there are zny changes necessary in *.e txisthg improvemeats
of the graatet as a result of such an increase or deczease, all costs coG-ctcd
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with said changes shall be paid by grmtor. *. e
5. Grantor, with prior written notice to grzrrtee, shall have the right to
cons*;ruct roads over and across the parcel above descrioed, provided, said
roads shdll in no way interiere wit5 or restrict the use of tltc stid parcel by
grantee for tke purposes granted herein.
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6. Grantor ShzU have the right to coanect to any elcis~ag manholes
kclasion charges or coaaec'iion fees, provided, however, ht the actutl
cost'of any connectioa by gtzlltor to said mt&des shall be paid by grintor-
7, .Grr=tor,- with the consent of grantee, which grant& agrees sot to
unzetsozzbly vritfihold, shall have the right to encroach on the parcel above
described for purposes of a drai&lje chzmnel, provided, said encroachzze=t
f
-.
=. sEa'be so designed, foc2ttd 2nd constructdd so as not to interfere \vi& 3,r
reftrict 5e ,use or' said parcel by grtstee for fie prpses gzanted %ere<r,
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DATE D: MZ~ a , 1972,
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BERNARD CITRON, a married man, EL4RRY J. L. FIRAXK, JR.,
a nrrie6 man, and FAVrCO, a partnership, herein collectively refezzed
to as GRANTOR, do- hereby grant to VISTA SAXITATION DIST,WCS: 2nd
CITY 0-F CARLSBAD, herein collsctively referred to as GaANTEE, as
tenants k COPL~OP, &ti= scccessors and assip, a fifteen (15) foot ezscmcr'l
of right of way upon, over zad across the land ciescrihd OLZ ErJ.tibit A aLrrrcheZ -
hereto and by reference hereto -de a part hereof, to a point to be deterrrrizsd .. --
by GR!!NTOR from tine to time bn the.e&terlg hhalf of the ten (10) foot
tastaent grrated c~~urzezt& herewittr by GRANTOR ti SRAX'TEE for
sewer li3t purposes,
sbill be determiPed RANTOR OR fqm &e to tiple and GRANZEE sh&
be noS%cd in writing by G%!WTOR of &e initial LocaEon 2nd of my cbges
which may in the fcbe be made ia-said locaSon by GRAXTOR k its sole
-discretion. Grantor agrees tht suck ttsencnt sU at all tkes provide
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The exact location of the right of way granttd kereudtr -
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timek the future, all interest of the GMPIrcLE herein granted shall revert
to GR%N\'TOR, its successors or assigns.
M=Y a, , 1972- DATED:
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.(hdiYidud:)
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BARRY G. WEST
RICHARD A. CORLETO.
MOSHE J. KUPlETLKY*
ALBERT t PRAW*
HOWARD J. RUBINROIT*
MARC I. HAYUTIN.
JAMES F. DONLAN
LILIAN R LEWIS
MARK F. WElSS
STEVEN L. BROOKMAN
*CIOTLUIO*4 -now5
HAYUTIN, RUBINROIT, PRAW & KUPIETZKY
A PARTWLRSHIP WHICH INCLUW PAOFaSKIuAL CORPOUtYWU
ATTORNEYS AT LAW
2OZ9 CENTURY PARK EAST, SUITE 1515
LOS ANGELES. CALIFORNIA 90067
TELEPHONE
(213) 277-SOSO
REFER TO FILE:
July 10, 1986
Vincent Biondo, Esq. City Attorney, City of Carlsbad
1200 Elm Avenue Carlsbad, California 92008-1989
Peterson, Thelan & Price
530 nBn Street Suite 2300 San Diego, California 92101
Re: Hosp Grove Parcels D, E, E Prime and F
Gentlemen:
This letter will serve to memorialize our agreement as
to certain matters regarding the negotiations which have been
occurring, are ongoing, and have led to certain agreements between the owners of Grove Parcels D, E, E Prime and F, Odmark Development Company, and the City of Carlsbad, concerning the possible acquisition by the City and/or development by the owners
and/or developer of said parcels and/or portions thereof. We have agreed that:
(1) Any and all discussions which have occurred as a part of said negotiations, except as specifically referred to herein, are part of settlement negotiations, which are therefore confidential, and cannot and will not be revealed in any legal proceeding which may result with regard to the disputes presently
existing or which may hereinafter arise between them.
proceedings are brought concerning or involving the documents
entered into between the parties as a result of such negotiations, insofar as matters discussed in those negotiations would otherwise properly be admissible as parole evidence, the same may be revealed and will be admissible; and (b) the Grove Group shall have the right to make and/or cause to be made a full
administrative record of its attempts to obtain pemits ar,d
approvals in order to develop the Proposed Development.
. Notwithstanding the foregoing: (a) if any legal or equitable
Vincent Biondo, Esq. Peterson, Thelan & Price
July 10, 1986 Page 2
(2) The fact that the parties are conducting and/or have conducted such negotiations, are forebearing presently from
instituting and prosecuting any litigation in connection with said disputes, and are pursuing various avenues towards the possible acquisition by the City and/or development by the owners and/or Odmark of Parcels D, E, E Prime and F, or portions
thereof, is all without prejudice to any rights which any of the parties hereto may previously have had in connection with said disputes, and each party will be deemed to have preserved
whatever rights, remedies, claims, or defenses it may have with regard to such disputes;
(3) Except as provided below, neither the owners nor Odmark shall argue in any proceeding brought in connection with this matter that they suffered any additional damage or loss by reason of the passage of time or any other cause since April 18,
1986. The provisions of this paragraph shall terminate if the City Council does not approve the Agreement for Purchase of Sale of Real Property and Stipulation for Entry of Revised Judgment by
Wednesday, July 23, 1986, and/or cause the same to be executed and delivered to the undersigned as soon as possible thereafter.
(4) In any subsequent proceeding between the
parties hereto arising solely out of an alleged breach of the Purchase Agreement and/or alleged failure to comply with the Revised Judgment, neither of the parties shall have the right to recover or seek recovery of monetary damages from the other, and their sole recourse shall be to seek non-monetary relief, including, but not limited to, by way of writs of mandamus and/or
prohibition, declaratory relief, injunctive relief, specific performance, contempt, or similar remedies.
(5) Notwithstanding paragraph (4) above, and while the City of Carlsbad reserves the right to argue that no cause of action therefor exists, if no Property Close of Escrow occurs as
defined in the Agreement for Purchase and Sale of Real Property, the owners and/or Odmark reserve the right to assert a clah(s) for inverse condemnation, seeking monetary damages for any future action(s1 by the City of Carlsbad which down-zones, and/or
results in the failure to approve a development scheme which provides a reasonable economic use of, Parcels E, E Prime, and/or
F.
(6) Neither the City of Carlsbad nor Odmark will argue in any legal or equitable proceeding between them, or either of
them, and the owners, that the owners' acjreement to sell to the
City Farcels 9, E, E PrLme, aril F collectively, or F alcne, fsr
Vincent Biondo, Esq, Peterson, Thelan & Price
July 10, 1986 Page 3
any certain price is evidence of the fair market value of said parcels, or any of them;
(7) Any any all applicable statutes of limitation,
including, but not limited to any such limitations under the California Environmental Quality Act, are tolled as of April 23,
1986, subject to the tolling period being terminated upon either (a) 15 days’ written notice addressed to the undersigned on behalf of their respective clients; or (b) termination by any party of the Agreement for Purchase and Sale of Real Property
which is being executed by the parties contemporaneously herewith; and
(8) The City of Carlsbad, on the one hand, and the
owners and Odmark, on the other, disagree as to the meaning, scope and effect of Paragraphs 14B (2) and (3) and 14C (1) and
(2) of the Revised Judgment, which paragraphs are essentially derived from the original Judgment. proceedings between the parties, the City of Carlsad, on the one hand, and the owners and Odmark, on the other, shall be deemed to
have preserved whatever rights, remedies, claims, arguments, or defenses they may have thereunder or in connection therewith.
In any subsequent
Please indicate that the foregoing correctly memorializes the agreement of the parties by executing and returning to me a copy hereof,
Very truly yours,
Howard J. Rubinroit of
HAYUTIN, RUBINROIT, PRAW & KUPIETZKY Attorneys For Grove Investment Partnership and HFH Limited
HJR:ddm Enclosure
City of Carlsbad
By :
Vincent Bio~do, Esq.
Odmark Development
By :
John Thelar., Esq. of
Peterso:, ?tz.l~r. & Price