HomeMy WebLinkAboutOdmark Development Co / Collins Development Corp; 1987-05-12;WRITE IT-DoN’T SAY 1T INTER-DEPARTMENT MEMORANDUN
AM
TO CITY CLERK’S OFFICE DATE June 8, 1987 PM
RE: ESCROW NO. 944539G
ODMARK DEVELOPMENT CO./H.F.H., LTD., ET.AL
HOSP EUCALYPTUS FOREST
Attached are the originals in regards to the above matter
from First American Title Insurance Company dated, 6/8/87 -
please retain them in your files.
Th k yyi. &zy
ANITA RAMOS-BONAS
City Attorney’s Office
REPLY ON THIS SHEET FROM _____ ______ __.- ~- - __
WlLh’ER SERVICE UNE STANDARD INTER DEPT. MEMO FORM 11-24-1
'rst American Title Insurance Co
41 1 IVY STREET e P.O. BOX 808 e SAN DIEGO, CA 921 12-993: e (619) 238-1 776
June 8, 1987
CITY OF CARLSBAD
1200 Elm Avenue
Carlsbad, California 92008-1989
Attention: Vincent F. Biondo, Esq.
RE: ESCROWNO. 944539G
ODMARK Dm. CO./H.F.H., LTD., ET ATi HOSP EUWUPTUS FOEST
Dear Mr. Biondo:
In connection with the closing of the above referenced escrow on June
2, 1987, please find the following enclosed:
1) Final Closing Statement
2) Fxecuted Counterpart AG- FOR S- OF LAWSUIT AND MUTUAL REL;EASES
3) Executed Counterpart AGREEMENT FOR SETEEMENT OF DISPUTES AND MUTUAL
RELEASES with ("Collins")
4) Executed Counterpart AGREEMENT FOR SETIZEMENT OF DISPUTES AND MUTUAL €EXEASES
A check for $299.45 and a copy of the Final Closing Statement has been
sent to Jim Elliot in your Finance Department.
Thank you for giving me this opportunity of serving you and if you have an:
questions, please do not hesitate to call.
Sincerely,
x\\ CLkL b- &:<Y<-- h
Kate Nemec
Escrow Officer
”.
First American Title Insurance Company
411 IVY STREET, (P.O. BOX 808) SAN DIEGO, CALIFORNIA 92101 (619) 238-1776
CITY OF CARLSBAD Closing date:
Attn: City Manager June 2, 1987
1200 Elm Avenue Escrow No. 94453
Carlsbad, CA 92008-1989
REFERENCE: Parcels D, E, E Prime & F, HOSP EUCALUPTUS FOREST
CLOSING STATEMENT
DEBIT CRED
Total Consideration $ 6,457,834.55
DEPOSITS :
Deposit by City of Carlsbad $ 6,459
ESCROW FEES:
Escrow Fee 1,250.00
CHECK HEREWITH 299.45
Total $ 6,459,384.00 $ 6,455
SAVE FOR INCONE TAX INFORMATION
.. 7.; . .' ..
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AGREEMENT FOR SETTLEMENT OF LAWSUIT
AND MUTUAL RELEASES
THIS AGREEMENT is made and entered into this
day of May, 1987, by and between Friends of Hosp Grove, Inc
("Friends"), Buena Vista Lagoon Foundation ("Lagoon"),
Albert J. Ellison ("Ellison") (all of the foregoing herein-
after sometimes referred to collectively as "Friends of Hosl
Grove") , the City of Carlsbad ("Carlsbad") , Grove Apartment:
Investment Co. ("Grove"), H.F.H., Ltd. ("H.F.H."), the Odma:
Development Co. ("Odmark") and Collins Development Corporat:
("Collins").
I.
FACTUAL RECITALS
1.0 This Agreement is entered into with referenct
to the following facts:
1.1 Grove is and/or previously was the record
owner of a portion of certain real property located in the
County of San Diego (the "Grove Parcel").
1.2 For purposes of development, the Grove Parce:
was divided into sub-parcels A, B, C, D and E, all as
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reflected on the Master Plan of Development, approved by
Carlsbad on or about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been
developed. Sub-parcels -D and E have the following acreage,
which Grove previously intended to develop with residential
units as follows:
D 16.085 acres 130 units
E 27.675 acres 240 units
1.4 The partners of Grove and HFH, Ltd. are the
record owners of certain real property located in the County
of San Diego ("Parcel F") .
1.5 In order to develop and/or cause the develop-
ment of Parcels D, E, and F, Grove entered into an agreement
with Odmark Development Company ("Odmark"), which, as from
time to time amended (the "Odmark Agreement") provided for
the sale to Odmark of Parcels D and E, Parcel E being com-
prised of sub-parcels E and F Prime.
1.6 Odmark has assigned certain of the Odmark
Rights to Collins, and Collins has or claims to have certain
rights and claims in connection with the Property, all of
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.I
which rights or claims are hereinafter referred to as the
"Collins Rights. I'
1.7 On March 18, 1986, the City Council of the
City of Carlsbad held a public hearing to consider the
request by Odmark to approve a tentative map and condominiun
unit permit, and further to consider approving the Mitigatec
Negative Declaration issued by the Planning Director and
recommended for approval by the Planning Commission.
1.8 A number of members of the public appeared
at said 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 Commissioi
leading to the issuance of the Mitigated Negative Declara-
tion.
1.9 By Resolution No. 8468, the City Council of
the City of Carlsbad disapproved the Mitigated Negative
Declaration, and directed the preparation of an Environment
Impact Report for said project.
1.10 In connection with said action, the City
Council voted to cause a review of both the General Plan
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.. ., . .. -
*.
and Hosp Grove Master Plan, and to consider the possibility
of acquiring some or all of Parcels D, E and F.
1.11 Subsequent to the foregoing, Grove and Odmark
placed the City on notice of their position that the fore-
going actions of the City Council in disapproving the
Mitigated Negative Declaration, requiring that an Environ-
mental Impact Report to be prepared concerning said project,
causing the Hosp Grove Master Plan and General Plan to be
reviewed were unlawful and in violation of their rights,
including their rights of development under a Judgment
entered in previous litigation amongst some of them and the
City, being Civil Action No. N 9052.
1.12 Subsequent to the actions of the City Council
described hereinabove, members of the public continued to
express a desire to attempt to acquire Parcels D, E, and
F, or some portion thereof, for park and/or recreational
purposes, and Grove and Odmark continued to assert their
rights to develop said parcels.
1.13 Commencing April, 1986, representatives of
the City of Carlsbad, Grove, and Odmark met and otherwise
communicated on numerous occasions in order to resolve the
disputes which existed between them arising out of the
foregoing.
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1.14 In or about July, 1986, Grove, H.F.H., the
Vista Sanitation District, Kamar Construction Company, and
the City of Carlsbad entered into a Stipulation for Entry
of Revised Judgment in Civil Action No. N 9052, pursuant
to which a Revised Judgment Pursuant to Stipulation (the
"Revised Grove Judgment") has been duly entered;
1.15 As of July 10, 1986, Grove, H.F.H., various
of the principals of each, and City entered into an Agreemei
for Purchase and Sale of Real Property, pursuant to which,
on November 4, 1986 a ballot measure was submitted to the
voters of Carlsbad regarding, among other things, the acqui-
sition of the Property by the City. Such ballot measure
received slightly less than the 2/3 affirmative vote requirf
and was not approved.
1.16 Thereafter Carlsbad determined to acquire
the Property under the threat of and in lieu of condemnatioi
and to purchase and have assigned to it the Odmark Rights
(including the Collins rights), provided it obtained the
requisite vote of the registered voters within Carlsbad
authorizing or approving such acquisition.
1.17 In connection therewith, the City Council
of the City certified a Final Environmental Impact Report
concerning the proposed development of the Property (the
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"EIR"), approved a General Plan Amendment, Land Use Plan,
Site Development Plan, zone changes, and Master Plan amend-
ments concerning the Property (the "City actions and
decisions").
1.18 On or about December 1, 1986, Friends, Lagooi
and Ellison filed a Petition for Writ of Mandate in an actic
entitled Friends of Hosp Grove, Inc., etc. v. City of
Carlsbad, etc., being Civil Action No. N 35426 in the San
Diego Superior Court (hereinafter "Civil Action No. 35426").
2.19 Thereafter the parties to Civil Action
No. 35426 agreed to continue various dates and to preserve
their rights, claims, and arguments in and/or with regard to
said Action pending the results of an election to be held
involving, among other things, a ballot measure to authorize
the City to purchase the Property.
1.20 Carlsbad caused a ballot measure ("Acquisi-
tion Ballot Measure") to be submitted to the voters of the
City at a special election held on March 3, 1987, which
Acquisition Ballot Measure was approved, and which authorizec
Carlsbad to acquire the Property and the Odmark Rights for
cash.
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1.21 As of May&, 1987, Grove, H.F.H., various
of the principals of each, Odmark, and Carlsbad entered
into an Amended and Restated Agreement for Purchase and Sale
of Real Property (the "Restated Agreement") , which provides,
among other things, for the purchase by the City of the
Property and Odmark Rights.
1.22 It is now the desire and intention of Friend:
Lagoon, Ellison, Grove, HFH, Odmark, Collins, and Carlsbad
to compromise and resolve the disagreements and disputes
which exist or may exist between them arising out of the
foregoing, including those which caused the filing of Civil
Action No. N 35426, and also to resolve certain other
matters. Pursuant to and in accordance with this desire, ar
in consideration of the promises and releases contained
herein, the parties agree as follows:
11.
DISMISSAL OF LITIGATION AND RELEASES
2.0 Upon the Property Close of Escrow as defined
in the Restated Agreement, Friends of Hosp Grove agree to
execute and cause to be filed a Request for Dismissal of
Civil of Action No. N 35426, dismissing said Action with
prejudice as to respondent Carlsbad and real parties in
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interest HFH, Grove, Odmark, and Collins, each such par.
to bear its own costs.
2.1 Carlsbad hereby represents and/or agrees 2
follows:
2.1.1 That it has no present intention c
developing the Property other than for park purposc
and/or as open space;
2.1.2 That it has no present intention c
attempting to utilize and/or rely -upon EIR 86-4, a?
therefore will take all steps necessary to de-certify t:
same;
2.1.3 That under the Restated Agreement tl
Revised Judgment Pursuant to Stipulation in Civil Actic
NO. N9052 will no longer apply to the property, which .
the subject of this agreement, as of close of escrow.
2.3 As of the Property Close of Escrow, Frienc
of Hosp Grove, and each and all of them, do hereby relea:
and absolutely discharge each and all of Carlsbad, HFI
Grove, Odmark, and Collins of and from any and all claim:
demands, damages, debts, liabilities, account
reckonings, obligations, costs, expenses, liens, actio
and cause of action of every kind and nature whateve
whether now known or unknown, suspected or unsuspecte
which Friends of Hosp Grove now has, owns or ho
or at any time heretofore ever had, owned, or 'he
against Carlsbad, HFH, Grove, Odmark, or Collin
or any of them, upon or arising out of any matte
cause, fact, act or omission whatever occurring
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existing at any time to and including the date hereof (all
which are hereinafter referred to as and included within t:
"Released Matters'f ) .
2.4 As of the Property Close of Escrow, Carlsba
HFH, Grove, Odmark, and Collins, and each and all of them,
hereby release and absolutely discharge Friends of Hosp
Grove, and each of them, of and from any and all claims,
demands , damages , debts, liabilities, accounts , reckonings
obligations, costs, expenses, liens, actions and causes of
action of every kind and nature whatever, whether now know
or unknown, suspected to unsuspected, which Carlsbad, HFH,
Grove, Odmark, or Collins, or any of them, now have, own,
hold, or at any time heretofore ever had, owned or held
against Friends of Hosp Grove, or any of them, based upon
arising out of any matter, cause, fact, thing, act or omis
whatever occurring or existing at any time to and includin
the date hereof (all of which are hereinafter referred to
and included within the "Released Matters").
2.5 Without limiting the foregoing Friends of E
Grove do hereby waive and release any and all claims they,
or any of them, may have for attorneys' fees to the date
hereof, including any claim under Code of Civil Procedure
gl021.5, which claims shall be included within "Released
Matters. I'
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2.6 It is the intention of the parties in execu-
ting this Agreement, that this Agreement shall be effective
as a full and final accord and satisfaction and general
mutual release of and from all Released Matters, except only
as otherwise expressly provided in this Agreement. In
furtherance of this intention, each of the parties acknowled
ges that it is familiar with Section 1542 of the Civil Code
of the State of California, which provides as follows:
"A general release does not extend to
claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which if known by him must have materially
affected his settlement with the debtor."
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of the
Civil Code of the State of California or any similar provi-
sion of the statutory or non-statutory law of any other
jurisdiction to the full extent that it may lawfully waive
all such rights and benefits pertaining to the subject matte
of this Agreement.
relinquishment, each of the parties acknowledges that it is
aware that it or its attorneys may hereafter discover claim
or facts in addition to or different from those which it no'
knows or believes to exist with respect to the subject matt
of this Agreement or the other parties hereto, but that it
irs intention hereby fully, finally, and forever to settle
In connection with such waiver and
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and release all of the Released Matters, known and unknown,
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.7 The parties hereto each warrant and represen.
to the other that it is the sole and lawful owner of all
right, title and interest in and to all of the respective
Released Matters and that it has not heretofore, voluntaril?
by operation of law, or otherwise assigned or transferred
or purported to assign and transfer to any person whomsoeve
any Released Matter or any part or portion thereof, or any
claim, demand or right against the other. Each of the
parties shall indemnify and hold harmless the other from an1
against any claim, demand, damage, debt, liability, act,
reckoning obligation, cost, expense, lien, action, or cause
of action (including payment of attorneys' fees and costs
actually incurred whether or not litigation be commenced)
based on or in connection with or arising out of any such
assignment or transfer or purported or claimed assignment o
transfer .
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of any
person who is not a party signatory hereto or specifically
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named a beneficiary in this paragraph. The provisions of
this Agreement and the releases contained herein shall exter
to and inure to the benefit of, and be binding upon, in
addition to the parties hereto, just as if they had executec
this Agreement: the respective legal predecessors, succes-
sors and assigns of the parties; each and every entity whicl
now is or ever was a parent or subsidiary of Odmark or
Collins; the respective past and present members, officers,
shareholders, officials, directors, partners, employees,
trustees, beneficiaries, and attorneys of the parties and/o~
of each such parent or subsidiary entity, and their respec-
tive legal successors and assigns; and each of the foregoinc
IV.
GENERAL
4.1 This Agreement and the releases contained
herein affect the settlement of claims which are denied and
disputes which are contested, and nothing contained herein
shall be construed as an admission by any party hereto of a
liability of any kind to any other party. Each party
expressly denies that it is liable or indebted to any other
party.
4.2 This Agreement constitutes and contains the
entire agreement and understanding concerning the subject
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.. . I. ..
matter between the parties, sets forth all promises and
inducements made by any party to any other party with respec
to any of the subject matter, and supersedes and replaces a:
prior negotiations, proposed agreements or agreements,
written or oral. Each of the parties acknowledges to each (
the other parties that no other party nor any agent or
attorney of any other party has made any promise, represent;
tion, or warranty whatsoever, express or implied, written 0:
oral, not contained herein concerning the subject matter
hereof to induce it to execute this Agreement, and each of
the parties acknowledges that it has not executed this Agrel
ment in reliance on any promise, representation, or warrant
not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiation
which preceded the execution of this Agreement and that it
has executed this Agreement with the consent and on the
advice of such independent legal counsel. Each party furth
acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry they
may deem necessary or desirable in connection with the
subject matter of this instrument prior to the execution
hereof and the delivery and acceptance of the consideratior
specified herein.
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1.
I.
4.4 This Agreement and any other documents re-
ferred to herein shall in all respects be interpreted,
enforced and governed by and under the laws of the State of
California applicable to instruments, persons and transac-
tions which have legal contacts and relationships solely
within the State of California. Counsel for all parties hav
read and approved the language of this Agreement. The
language of this Agreement shall be construed as a whole
according to its fair meaning, and not strictly for or
against any of the parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint ventures
and any other entity.
4.6 Whenever in this Agreement the context so
requires, the masculine gender shall be deemed to refer to
and include the feminine and neuter, and the singular to
refer to and include the plural.
4.7 This Agreement may be executed in counterpar.
and shall become effective when all parties have executed
ana acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been deliverel
to counsel for the parties.
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4.8 The titles of the various articles of this
Agreement are used for convenience of reference only and
are not intended to and shall not in any way enlarge or
diminish the rights or obligations of the parties or affect
the meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set
their hands and seals as of the day and year first written
above.
FRIENDS OF HOSP GROVE, INC.
By : Its:
BUENA VISTA LAGOON FOUNDATION
GROVE APARTMENTS INVESTMENT CO.
By :
Its: -
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b
4.8 The titles of the various articles of this
Agreement are used for convenience of reference only and
are not intended to and shall not in any way enlarge or
diminish the rights or obligations of the parties or affect
the meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set
their hands and seals as of the day and year first written
above.
FRIENDS OF HOSP GROVE, INC.
By :
Its:
BUENA VISTA LAGOON FOUNDATION
By:
Its:
Albert J. Ellison
GROVE APARTMENTS INVESTMENT CO.
,“ A By-: 7,&,< 4”dXf y 744 A”, ,$ &/L& -- ,!/h-GL4/---, $/
3 --I / 0 -/’ , r\ Its: l’)q& ’ p”(CAL -
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,<
H.F.H., LTD.
I
By :
Its: I
ODMARK CONSTRUCTION CO.
By :
Its:
COLLINS DEVELOPMENT CORPORATION, a corporation
By :
Its:
THE CITY OF CARLSBAD
By :
Its:
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
-
By :
Attorneys for G
Investment Co. and H.F.H., Ltd.
PETERSON, THELAN, & PRICE
By :
John Thelan
Attorneys for Odmark
Development Co.
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# 1 . +..
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
By : kPj’- Attfineys for Collins
Development Corporation
Belinda Blacketer, Esquire
Attorney for Friends of
Hosp Grove, Inc., Buena
Vista Lagoon Foundation, Inc., and Albert J. &llison
HJR187D
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\ tl L. r. r 1. .
H.F.H., LTD.
By :
Its:
ODMARK CONSTRUCTION CO.
By : 4!&&
Its: PW1MWO
COLLINS DEVELOPMENT CORPORATION,
a corporation
By :
Its:
U
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By :
Howard J. Rubiriroi t
Attorneys for Grove Apartments
Investment Co. and H.F.H., Ltd.
PETERSON, THELAN, & PRICE
By :
John Thelan
Attorneys for Odmark
Development Co .
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_. . -
City Attorney, City of Carlsbad
By :
Attorneys for Collins
Development Corporation
Belinda Blacketer, Esquire
/-A&-J Attorney for Friends of
Hosp Grove, Inc., Buena
Vista Lagoon Foundation,
Inc., and Albert J. sllison
4
HJR187D
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d
82'
AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES C
THIS AGREEMENT is made and entered into this - day I
May, 1987, by and between Grove Apartments Investment Co.
("Grove"), H.F.H., Ltd. ("H.F.H."), Harry J. L. Frank, Jr.
("Frank") , the Bernard Citron Trust ("Citron Trust") , Fred
Bartman, Jr. ("Bartman"), the Marital Trust under the Will
William S. Bartman ("Marital Trust"), the Residuary Trust
Under the Will of William S. Bartman ("Residuary Trust") (
of the foregoing hereinafter sometimes referred to collect
as the "Grove Parties"), Collins Development Corporation
("Collins") , and the City of Carlsbad ("Carlsbad") .
I
FACTUAL RECITALS
1.0 This Agreement is entered into with reference tc
the following facts:
1.1 Grove is and/or previously was the record owner
a portion of certain real property located in the County c
San Diego (the "Grove Parcel").
*)
1.2 For purposes of development, the Grove Parcel wa
divided into sub-parcels A, B, C, D, and E, all as reflect
on the Master Plan of Development, approved by Carlsbad on
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been deve
loped. Sub-parcels D and E have the following acreage, wl-
Grove previously intended to develop with residential unit
as follows:
D 16.085 acres 130 units
E 27.675 acres 240 units
1.4 The partners of Grove and HFH, Ltd. are the recc
owners of certain real property located in the County of S
Diego ( "Parcel F" ) .
1.5 In order to develop and/or cause the development
Parcels D, E, and F, Grove entered into an agreement with
Odmark Development Company ("Odmark") , which, as from time
time amended (the "Odmark Agreement"), provided for the sa
to Odmark of Parcels D and E, Parcel E being comprised of
sub-parcels E and E Prime. All of Odmark's right, title, a
interest in, to and under the Odmark Agreement are hereina
referred to as the "Odmark Rights."
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84
1.6
Collins, and Collins has or claims to have certain rights
claims against the Grove Parties and Carlsbad in connectio
with the Property, the Odmark Agreement, and/or the Odmark
Rights, all of which rights or claims are herein-
after referred to as the "Collins Rights".
Odmark has assigned certain of the Odmark Rights
1.7 As of July 10, 1986, Grove, H.F.H., various of
principals of each, and City entered into an Agreement for
Purchase and Sale of Real Property, pursuant to which,
November 4, 1986 a ballot measure was submitted to the vot
of Carlsbad regarding, among other things, the acquisition
the Property by the City.
slightly less than the 2/3 affirmative vote required and w
not approved.
on
Such ballot measure received
1.8 Thereafter Carlsbad determined to acquire the
Property in lieu and/or under threat of condemnation,
purchase and have assigned to it the Odmark Rights (includ
the Collins rights), provided it obtained the requisite vo
of the registered voters within Carlsbad authorizing or
approving such acqisition.
and
1.9 Carlsbad caused a ballot measure ("Acquisition
Ballot Measure") to be submitted to the voters of the City
a special election held on March 3, 1987, which Acquisitio
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e.
Ballot Measure was approved, and which authorized Carlsbad
acquire the Property and the Odmark Rights for cash.
1.10 Odmark, Collins and certain of the Grove Parties
have filed an action in the San Diego Superior Court, entit
Odmark Development Company, et al. v. City of Carlsbad, et
which is Civil Action No. N 36215 in said Court (herein-
after Civil Action No. 36215).
1.11 As of May)&, 1987, Grove, H.F.H., various of t2
principals of each, Odmark, and Carlsbad entered into an
Amended and Restated Agreement for Purchase and Sale of Re;
Property (the "Restated Agreement").
1.12 It is now the desire and intention of the Grove
Parties, Collins, and Carlsbad to compromise and resolve a.
of the disagreements and disputes which exist or may exist
between them arising out of the foregoing, including those
which caused the filing of Civil Action No. N 36215, and
also to resolve certain other matters. Pursuant to and in
accordance with this desire, and in consideration of the
promises and releases contained herein, the parties agree
follows:
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I1
DISMISSAL OF LITIGATION AND RELEASES
2.0 Collins and those of the Grove Parties who are
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 36215, eack
party to bear its own costs.
2.1 Collins does hereby release and absolutely disck
the Carlsbad and the Grove Parties, and each and all of th
of and from any and all claims, demands, damages, debts,
liabilities , accounts, reckonings, obligations, costs ,
expenses, liens, actions and causes of action of every kin
and nature whatever, whether now known or unknown, suspect
or unsuspected, which Collins now has, owns, or holds or a
any time heretofore ever had, owned or held against Carlsb
and/or the Grove Parties based upon or arising out of any
matter, cause, iact, thing, act or omission whatever occur
or existing at any time to and including the date hereof i:
connection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F including, but not
limited to, the Odmark Rights and the Collins Rights (all (
which are hereinafter referred to as and included within tl
"Released Matters").
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2.2 Carlsbad and the Grove Parties, and each and a1
them, do hereby release and absolutely discharge Collins I
and from any and all claims, demands, damages, debts, lial
lities, accounts, reckonings, obligations, costs, expense
liens, actions and causes of action of every kind and natr
whatever, whether now known or unknown, suspected or unsui
pected, which the Carlsbad and/or the Grove Parties now hi
own, or hold, or at any time heretofore ever had, owned 0:
held against Collins based upon or arising out of any mat.
cause, fact, thing, act or omission whatever occurring or
existing at any time to and including the date hereof in
connection with the ownership of and/or rights and/or
attempts to develop Parcels D, E, and F, including, but nc
limited to, the Odmark Rights and the Collins Rights (all
which are hereinafter referred to as and included within t
"Released Matters").
2.4 It is the intention of the parties in executing
this Agreement, that this Agreement shall be effective as
full and final accord and satisfaction and general mutual
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In furthe
ance of this intention, each of the parties acknowledges t
it is familiar with Section 1542 of the Civil Code of the
State of California, which provides as follows:
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"A general release does not extend to clain
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have materiz
affected his settlement with the debtor."
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of the
Civil Code of the State of California or any similar provi
sion of the statutory or non-statutory law of any other
jurisdiction to the full extent that it may lawfully wain
all such rights and benefits pertaining to the subject mat
of this Agreement. In connection with such waiver and
relinquishment, each of the parties acknowledges that it j
aware that it or its attorneys may hereafter discover claj
or facts in addition to or different from those which it r
knows or believes to exist with respect to the subject mat
of this Agreement or the other parties hereto, but that it
its intention hereby fully, finally, and forever to settle
and release all of the Released Matters, known and unknowr
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.5 The partles hereto each warrant and represent tc
the other that it is the sole and lawful owner of all rig1
title and interest in and to all of the respective Releast
-7-
Matters and that it has not heretofore, voluntarily, by
operation of law or otherwise, assigned or transferred or
purported to assign and transfer to any person whomsoever
Released Matter or any part or portion thereof, or any cla
demand or right against the other. Each of the parties sh
indemnify and hold harmless the other from and against any
claim, demand, damage, debt, liability, act, reckoning, ob
gation, cost, expense, lien, action, or cause of action
(including payment of attorneys'
incurred whether or not litigation be commenced)
in connection with or arising out of any such assignment o
transfer or purported or claimed assignment or transfer.
fees and costs actually
based on
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of any per
who is not a party signatory hereto or specifically named
beneficiary in this paragraph.
Agreement and the releases contained herein shall extend t
and inure to the benefit of, in addit
to the parties hereto, just as if they had executed this
Agreement: the respective legal predecessors, successors
assigns of the parties; each and every entity which now i:
ever was a parent or subsidiary of ColliRs; the respective
The provisions of this
and be binding upon,
-8-
past and present officers, shareholders, officials, directc
partners, employees, trustees, beneficiaries, and attorney:
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns;
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herein
affect the settlement of claims which are denied and dispui
which are contested, and nothing contained herein shall be
construed as an admission by any party hereto of any liabil
of any kind to any other party. Each party expressly denic
that it is in any way liable or indebted to any other part]
4.2 This Agreement constitutes and contains the entii
agreement and understanding concerning the subject matter
between the parties, set forth all promises and inducement:
made by any party to any other party with respect to any 01
the subject matter, and supersede and replace all prior
negotiations, proposed agreements or agreements, written 01
oral. Each of the parties acknowledges to each of the otht
parties that no other party nor any agent or attorney of a1
-9-
other party has made any promise, representation or warran
whatsoever, express or implied, written or oral, not conta
herein concerning the subject matter hereof to induce it t
execute this Agreement, and each of the parties acknowledg
that it has not executed this Agreement in reliance on any
promise, representation or warranty not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiatic
which preceded the execution of this Agreement and that it
has executed this Agreement with the consent and on the
advice of such independent legal counsel. Each party furt
acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry the)
may deem necessary or desirable in connection with the
subject matter of this instrument prior to the execution
hereof and the delivery and acceptance of the consideratic
specified herein.
4.4 This Agreement and any other documents referred
herein shall in all respects be interpreted, enforced and
governed by and under the laws of the State of California
applicable to instruments, persons and transactions which
have legal contracts and relationships solely within the
State of California. Counsel for all parties have read a
-10-
approved the language of this Agreement. The language of
this Agreement shall be construed as a whole according to
fair meaning, and not strictly for or against any of the
parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint venturc
and any other entity.
4.6 Whenever in this Agreement the context so requi
the masculine gender shall be deemed to refer to and incli
the feminine and neuter, and the singular to refer to and
include the plural.
4.7 This Agreement may be executed in counterparts ,
shall become effective when all parties have executed and
acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been delive
to counsel for the parties.
4.8 The titles of the various articles of this
Agreement are used for convenience of reference only and
not intended to and shall not in any way enlarge or dimin
-11-
the rights or obligations of the parties or affect the
meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals as of the day and year first written above.
GROVE APARTMENTS INVESTMENT CI
a partnership
// . By : x'L: /L-$ L$>J & JgJL 24~~
Its:
H.F.H., LTD.
By :
BERNARD CITRON TRUST
By :
I t s : -- _- /.f?L/ J-.7-&L-
/7/ / J 1 i/ &. <,/ qGJ~iLiN*& LA{
/Q#/? /,,AJ--f,"- (/. ,/ &d:L44b/-hi: /j -
%RED A. BARTPIAN, JR.
MARITAL TRUST UNDER THE WILL
WILLIAM S. BARTI"
By. a.
9 [I ST/:-k-
L---
' /< Its: 1 (h 1,
-12-
k
the rights or obligations of the parties or affect the
meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals as of the day and year first written above.
GROVE APARTMENTS INVESTMENT Ci
a partnership
By :
Its:
H.F.H., LTD.
By :
Its:
/
HARRY J. L. FRANK, JR.
BERNARD CITRON TRUST
By :
Its:
FRED A. BARTMAN, JR.
MARITAL TRUST UNDER THE WILL WILLIAM S. BARTMAN
By :
Its:
-12-
RESIDUARY TRUST UNDER THE WIL
OF WILLIAM S. BARTMAN
-J/ zJ ,fi/d&;&y- /wzs
By.. ~ , HfiyL&bf~! *\
Its: '1 fqus ( &!z /.--f--
COLLINS DEVELOPMENT CORPORATI
a corporation
By :
Its:
THE CITY OF CARLSBAD
By :
Its:
-13-
w
.-
RESIDUARY TRUST UNDER THE WII
OF WILLIAM S. BARTMAN
By :
Its:
COLLINS DEVELOPMENT CORPORATI
a corporation
By:
Its:
CITY OF CARL
- 13-
g
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By :
Howard J. Rubinroit
Attorneys for Grove Apartments
Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman,
Jr.; Marital Trust under the
Will of William S. Bartman,
Residuary Trust under the Will
of William S. Bartman
B$:
Attorneys for Collins Development
Corporation
RJR187C
-14-
*I (Gj - ,’ .I\
,,
RESIDUARY TRUST UNDER THE WIL
OF WILLIAM S. BARTMAN
By :
Its:
COLLINS DEVELOPMENT CORPORATI(
THE CITY OF CARLSBAD
By :
Its:
-13-
- <-- . u
b
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
/- ,7 /A@ ,I
By: ' : ,+g&&&&f// , 4lk/f Howard J. 'Rug'nryit "-
Attorneys fo6Grove Apartments Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard Citron Trust; Fred D. Bartman,
Jr.; Marital Trust under the
Will of William S. Bartman, Residuary Trust under the Will
of William S. Bartman
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
By :
for Collins Development
HJR187C
-14-
c
AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
THIS AGREEMENT is made and entered into this - day 1
May, 1987, by and between Grove Apartments Investment Co.
("Grove"), H.F.H., Ltd. ("H.F.H."), Harry J. L. Frank, Jr.
("Frank") , the Bernard Citron Trust ("Citron Trust") , Fred
Bartman, Jr. ("Bartman"), the Marital Trust under the Will
William S. Bartman ("Marital Trust"), the Residuary Trust 1
the Will of William S. Bartman ("Residuary Trust") (all of
foregoing hereinafter sometimes referred to collectively a
"Grove Parties") , Odmark Development Company ("Odmark") , a
City of Carlsbad ("Carlsbad") .
I
FACTUAL RECITALS
1.0 This Agreement is entered into with reference to
following facts:
1.1 Grove is and/or previously was the record owner
a portion of certain real property located in the County o
San Diego (the "Grove Parcel"). The legal description of
Grove Parcel is attached hereto as Exhibit ''l", and incorp
herein by this reference.
1.2 For purposes of development, the Grove Parcel wa
divided into sub-parcels A, B, C, D, and E, all as reflect
on the Master Plan of Development, approved by Carlsbad on
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been deve
Sub-parcels D and E have the following acreage, which Grob
previously intended to develop with residential units as f
D 16.085 acres 130 units
E 27.675 acres 240 units
1.4 The partners of Grove and HFH, Ltd. are the reco
owners of certain real property located in the County of S
Diego ("Parcel "F"). The legal description of Parcel F is
attached hereto as Exhibit "Z", and incorporated herein by
this reference.
1.5 Parcel F consists of approximately 8.92 acres.
1.6 On or about October 9, 1964, a Grant of Easement
Right-of-way from Rildan, Inc., a predecessor-in-interest
plaintiff Grove Apartments Investment Co. ("Grove") to the
City of Carlsbad ("Carlsbad") and the Vista Sanitation
District ("VSD"), as tenants in common ("Rildan Easement")
-2-
dated July 23, 1964, was recorded in the office of the Cou
Recorder, County of San Diego, in Book 1964 at Page 184917
1.7 On or about October 9, 1964, a Grant of Easement
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 a
VSD, as tenants in common ("Fawco Easement"), dated July 2
1964, was recorded in the Office of the County Recorder,
County of San Diego, in Book 1964 at Page 184918.
1.8 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 18.05 of the CMC, and which impo;
a moratorium on the issuance of building permits in Carlsb8
and a moratorium on the acceptance of applications for and
granting of discretionary approvals for development projec.
in Carlsbad.
1.9 On or about September 12, 1977, Grove Apartments
Investment Co. ("Grove"), a partnership, as successor in
interest to Rildan Inc., Fawco, Citron, and Frank, filed ai
action in the Superior Court entitled "Grove Apartments
Investment Co., a partnership, v. City of Carlsbad, a
-3-
Municipal Corporation, Vista Sanitation District, a Public
Corporation," being Civil Action No. N 9052 in the Superic
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 obliga-
tions under the Rildan and Fawco Easements and under
Ordinance Nos. 7047 and 7048, as amended and supplemented.
1.10 On or about July 31, 1978, pursuant to leave
granted by the Court therefor, Carlsbad filed a cross-comy
for declaratory relief adding HFH, Ltd. ("HFH") and Kamar
Construction Company ("Kamar") as parties to this action.
1.11 The trial in the matter commenced in October 15
and continued thereafter, except where recessed, until
November 20, 1978 when all sides rested, with the present;
tion of numerous oral testimony and the introduction of
voluminous exhibits by all parties.
1.12 On November 21, 1978, the Court, after hearing
argument, issued certain tentative rulings, and ordered
further briefing in said action.
1.13 Subsequent to November 21, 1978, the parties ar
others, after numerous meetings and other negotiations,
entered into an Agreement for Settlement of Lawsuit and
-4-
Mutual Releases (hereinafter the "Grove Settlement Agreeme
resolving, among other things, all the issues in the actio
1.14 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 whi
is the subject matter thereof.
1.15 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.
1.16 Subsequent to the entry of the Grove Judgment,
certain of the real property which is the subject matter o
the Grove Judgment was developed.
1.17 In order to develop and/or cause the developmen
of certain remaining portions of the real property which i
the subject matter of the Grove Judgment, Grove entered in
an agreement with Odmark Development Company ("Odmark"),
which, as from time to time amended (the "Odmark Agreement
provided for the sale to Odmark of Parcels D and E of the
-5-
property, Parcel E being comprised of sub-parcels E and E
Prime. All of Odmark's right, title, and interest in, to ai
under the Grove Odmark Agreement are hereinafter referred i
as the "Odmark Rights."
1.18 Pursuant to the Odmark Agreement, Odmark preparc
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.
1.19 Prior to January 22, 1986, Odmark submitted to
Planning Department of the City of Carlsbad an Environment
Initial Study including numerous reports and supplemental
reports evaluating potential environmental impacts of and
corresponding mitigation measures for the proposed condomi
project.
1.20 The Planning Director of the City of Carlsbad,
after determining that the proposed condominium project wo
not cause any significant impacts because potential impact
had been mitigated, issued a Mitigated Negative Declaratio
dated January 26, 1986, which, on February 5, 1986, was
recommended for approval by the Planning Commission of the
City of Carlsbad.
-6-
1.21 Odmark applied to the Planning Commission of th
City of Carlsbad for approval of a two-lot tentative map a
216/unit condominium permit with regard to the project.
1.22 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 condomini
permit for the project.
1.23 On March 18, 1986, the City Council of the City
Carlsbad held a public hearing to consider the request by
Odmark to approve the tentative map and condominium unit
permit, and further to consider approving the Mitigated
Negative Declaration issued by the Planning Director and
recommended for approval by the Planning Commission.
1.24 A number of members of the public appeared at s
hearing to challenge the project, to advocate the acquisit
by the City of Parcels D, E, and F (or portions thereof) f
recreational purposes, and/or to question the conclusions
the Planning Director and Planning Commission leading to t
issuance of the Mitigated Negative Declaration.
1.25 By Resolution No. 8468, the City Council of the
City of Carlsbad disapproved the Mitigated Negative Declar
-7-
and directed the preparation of an Environmental Impact
Report for said project.
1.26 In connection with said action, the City Counci
voted to cause a review of both the General Plan and Hosp
Grove Master Plan, and to consider the possibility of acq
some or all of Parcels 13, E and F.
1.27 Subsequent to the foregoing, Grove and Odmark
placed the City on notice of their position that the fore-
going actions of the City Council in disapproving the
Mitigated Negative Declaration, requiring that an Environ-
mental Impact Report to be prepared concerning said projec
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 Judgment
entered in this action.
1.28 Subsequent to the actions of the City Council
described hereinabove, members of the public continued to
express a desire to attempt to acquire Parcels D, E and F,
some portion thereof, for park and/or recreational purpose
and Grove and Odmark continued to assert their rights to
develop said parcels.
-8-
1.29 Commencing April, 1986, representatives of the
City of Carlsbad, Grove, and Odmark met and otherwise
communicated on numerous occasions in order to resolve the
disputes which existed between them arising out of the
foregoing.
1.30 On or about July, 1986, Grove, H.F.H., the Vista
Sanitation District, Kamar Construction Company, and the Ci
of Carlsbad entered into a Stipulation for Entry of Revisec
Judgment in Civil Action No. N 9052, pursuant to which a
Revised Judgment Pursuant to Stipulation (the "Revised Grot
Judgment") has been duly entered therein;
1.31 As of July 10, 1986, Grove, H.F.H., various of t
principals of each, and City entered into an Agreement for
Purchase and Sale of Real Property, pursuant to which, on
November 4, 1986 a ballot measure was submitted to -the votc
of the C,ty regarding, among other things, the acquisition
the Property by the City. Such ballot measure received
slightly less than 2/3 affirmative vote and was not approve
1.32 Thereafter the City determined to acquire the
Property in lieu of condemnation of the Property, and to
purchase and have assigned to it the Odmark Rights, providt
it obtained the requisite vote of the registered voters
within the City authorizing or approving such acquisition.
-9-
1.33 The City caused a ballot measure ("Acquisition
Ballot Measure") to be submitted to the voters of the Cit!
a special election held on March 3, 1987, which Acquisitic
Ballot Measure was approved, and which authorized the Cit?
acquire the Property and the Odmark rights for cash.
1.34 Odmark and certain of the Grove Parties have f:
an action in the San Diego Superior Court, entitled Odmarl
Development Company, et al. v. City of Carlsbad, et al..
which is Civil Action No. N 36215 in said Court (hereinafi
Civil Action No. N 36215).
1.35 As of Mayla, 1987, Grove, H.F.H., various of 1
principals of each, Odmark and City entered into an Amend(
and Restated Agreement for Purchase and Sale of Real Prop<
(the "Restated AgreementIf ) .
-
1.36 It iu now the desire and intentiem of the Grow
Parties and Odmark, on the one part, and the City of Carl:
on the other part, to compromise and resolve all of the
disagreements and disputes which exist or may exist betwec
them arising out of the foregoing, above, and also to res(
certain other matters. Pursuant to and in accordance with
this desire, and in consideration of the promises and relt
contained herein, the parties agree as follows:
-10-
I1
DISMISSAL OF LITIGATION AND RELEASES
2.0 Odmark and those of the Grove Parties who are
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 36215, each
party to bear its own costs.
2.1 Except as expressly provided in paragraph 2.6
below, the Grove Parties and Odmark, and each of them, do
hereby release and absolutely discharge the City of Carlsb
of and from any and all claims, demands, damages, debts,
liabilities, accounts, reckonings, obligations, costs,
expenses, liens, actions and causes of action of every kin
and nature whatever, whether now known or unknown, suspect
or unsuspected, which the Grove Parties and/or Odmark now
have, own, or hold or at any time heretofore ever had, own
or held against the Citl of Carlsbad based upon or arising
out of any matter, cause, fact, thing, act or omission
whatever occurring or existing at any time to and includin
the date hereof in connection with their ownership of and/
rights and/or attempts to develop Parcels D, E, and F (all
of which are hereinafter referred to as and included withi
the "Released Matters" ) .
-11-
2.2 Except as expressly provided in paragraph 2.6
below, City of Carlsbad does hereby release and absolute11
discharge the Grove Parties and Odmark, and each of them,
and from any and all claims, demands, damages, debts, lia-
bilities, accounts, reckonings, obligations, costs, expen:
liens, actions and causes of action of every kind and nati
whatever, whether now known or unknown, suspected or unsuz
which the City of Carlsbad now has, owns, or holds or at i
time heretofore ever had, owned or held against the Grove
. Parties or Odmark based upon or arising out of any matter,
cause, fact, thing, act or omission whatever occurring or
existing at any time to and including the date hereof in
connection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F (all of which are
hereinafter referred to as and included within the "Releas
Matters" ) .
2.3 Except as expressly provided in paragraph 2.6
below, the Grove Parties do hereby release and absolutely
discharge Odmark of and from any and all claims, demands,
damages, debts, liabilities, accounts, reckonings, obliga-
tions, costs, expenses, liens, actions and causes of actio
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which the Grove Parties
now have, own, or hold or at any time heretofore ever had,
owned or held against Odmark based upon or arising out of
-12-
matter, cause, fact, thing, act or omission whatever OCCUI
or existing at any time to and including the date hereof 1
of which are hereinafter referred to as and included with]
the "Released Matters").
2.4 Except as expressly provided in paragraph 2.6D
below, Odmark does hereby release and absolutely discharge
the Grove Parties of and from any and all claims, demands,
damages, debts, liabilities, accounts, reckonings, obliga-
tions, costs, expenses, liens, actions and causes of actic
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which Odmark now has,
owns, or holds or at any time heretofore ever had, owned c
held against the Grove Parties based upon or arising out c
any matter, cause, fact, thing, act or omission whatever
occurring or existing at any time to and including the dat
hereof (all of which are hereinafter referred to a's and
included within the "Released Matters").
2.5 Without in any way limiting the foregoing, and
except as expressly provided in paragraph 2.6D below, the
of Carlsbad hereby releases, discharges and indemnifies, i
agrees to hold harmless (a) the Grove Parties from each ax
all of the obligations of the Grove Parties under the agrc
ments identified on Exhibit 3 hereto as such agreements a1
to the Property, (b) the parties to that certain Agreemenl
-13-
regarding payment of a Public Facilities Fee, dated July 1
1985 and recorded August 26, 1985 under File Number 85-308
and 85-308358, from each and all of the obligations there-
under, and (c) the Grove Parties and Odmark from any and a
claims, losses, or demands of any kind whatsoever arising q
of or connected with the condition of the Property previou
or hereafter existing, and/or the unsuitability of the
Property for any use, except any claims, losses, or damage
arising from any negligent acts by the Grove Parties or
Odmark in connection with the Property.
2.6 The releases contained in this Agreement, and tht
descriptions of the Released Matters, do not cover and shoi
not be deemed to purport to cover:
A. Any of the rights, duties or obligations of
any person not a party hereto under the Revised Grave Judgr
or
B. Any of the rights, duties, or obligations of
any person or party (including any party hereto) under the
Revised Grove Judgment or otherwise concerning the real
property referred to in the Revised Grove Judgment as the
"May Stores Non-Coastal Zone Commercial Parcel'' and/or the
"May Stores Coastal Zone Commercial Parcel"; or
-14-
C. Any of the rights of any person or party
(including any party hereto) under the Revised Grove Judgn-
concerning sewer capacity (including the right to receive,
assign, and/or to transfer the same, and the obligations,
any, to pay for the same), insofar as such rights may be
necessary fully to provide sewer service to the real prope
referred to in the Revised Grove Judgment as the "May Stor
Non-Coastal Zone Commercial Parcel" and/or the "May Stores
Coastal Zone Commercial Parcels" (which the parties preser
believe will involve between 60 and 100 E.D.U's); or
D. Any of the rights, duties, or obligations c
the parties referred to in, arising under, or created by t
Restated Agreement which by the terms thereof survive the
Property Close of Escrow.
2.7 It is the intention of the parties in executing
this Agreement, that this Agreement shall be effective iis
full and final accord and satisfaction and general mutual
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In furthe
of this intention, each of the parties acknowledges that i
is familiar with Section 1542 of the Civil Code of the Sta
of California, which provides as follows:
-15-
"A general release does not extend to
claims which the creditor does not know or
suspect to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settle-
ment with the debtor."
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of the
Civil Code of the State of California or any similar pro-
vision of the statutory or non-statutory law of any other
jurisdiction to the full extent that it may lawfully waive
all such rights and benefits pertaining to the subject mat
of this Agreement. In connection with such waiver and
relinquishment, each of the parties acknowledges that it i
aware that it or its attorneys may hereafter discover clai
or facts in addition to or different from those which it r
knows or believes to exist with respect to the subject mat
of this Agreement or the other parties hereto, but that it
its intention hereby fully, finally, and forever to settle
and release all of the Released Matters, known and unknowr
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.8 The parties hereto each warrant and represent tc
the other that it is the sole and lawful owner of all rig1
-16-
title and interest in and to all of the respective Release
Matters and that it has not heretofore, voluntarily, by
operation of law or otherwise, assigned or transferred or
purported to assign and transfer to any person whomsoever
Released Matter or any part or portion thereof, or any cla
demand or right against the other. Each of the parties sh
indemnify and hold harmless the other from and against any
claim, demand, damage, debt, liability, act, reckoning,
obligation, cost, expense, lien, action, or cause of actio
(including payment of attorneys' fees and costs actually
incurred whether or not litigation be commenced) based on
in connection with or arising out of any such assignment o
transfer or purported or claimed assignment or transfer.
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of any per
who is not a party signatory hereto or specifically named
beneficiary in this paragraph.
Agreement and the releases contained herein shall extend t
and inure to the benefit of, and be binding upon, in addit
to the parties hereto, just as if they had executed this
Agreement: the respective legal predecessors, successors
assigns of the parties; each and every entity which now is
ever was a parent or subsidiary of Odmark; the respective
The provisions of this
-17-
past and present officers, shareholders, officials, directc
partners, employees, trustees, beneficiaries, and attorney!
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns;
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herein
affect the settlement of claims which are denied and dispu
which are contested, and nothing contained herein shall be
construed as an admission by any party hereto of any
liability of any kind to any other party. Each party
expressly denies that it is in any way liable or indebted
any other party.
4.2 This Agreement, the Restated Agreement, and the
Revised Judgment constitute and contain the entire agreeme
and understanding concerning the subject matter between th
parties, set forth all promises and inducements made by ar
party to any other party with respect to any of the subjec
matter, and supersede and replace all prior negotiations,
proposed agreements or agreements, written or oral. Each
the parties acknowledges to each of the other parties that
other party nor any agent or attorney of any other party 1
-18-
made any promise, representation or warranty whatsoever,
express or implied, written or oral, not contained herein
concerning the subject matter hereof to induce it to execi
this Agreement, and each of the parties acknowledges that
has not executed this Agreement in reliance on any promise
representation or warranty not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiatic
which preceded the execution of this Agreement and that it
has executed this Agreement with the consent and on the
advice of such independent legal counsel.
acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry the!
may deem necessary or desirable in connection with the
subject matter of this instrument prior to the execution
Each party furt
- herecf and the delivery and acceptance of the consideratic
specified herein.
4.4 This Agreement and any other documents referred
herein shall in all respects be interpreted, enforced and
governed by and under the laws of the State of California
applicable to instruments, persons and transactions which
have legal contracts and relationships solely within the
State of California. Counsel for all parties have read ar
-19-
approved the language of this Agreement. The language of
this Agreement shall be construed as a whole according to
fair meaning, and not strictly for or against any of the
parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint venture
and any other entity.
4.6 Whenever in this Agreement the context so requirc
the masculine gender shall be deemed to refer to and incluc
the feminine and neuter, and the singular to refer to and
include the plural.
4.7 This Agreement may be executed in counterparts a
shall become effective when all parties have executed and
acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been deliver
to counsel for the parties.
4.8 The titles of the various articles of this Agree!
are used for convenience of reference only and are not
intended to and shall not in any way enlarge or diminish t
rights or obligations of the partles or affect the meaning
construction of this document.
-20-
t
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals as of the day and year first written above
GROVE APARTMENTS INVESTMENT
a partnership
/i? 7- By:- Zd l&f$;&&/W%/
Its: ?[? [? >-*&&?-
H.F.H., LTD.
By :
Its:
BERNARD CITRON TRUST
22 6 By: (,:5' // ('- c //&, '// (4 'fila z q,
5 &/c q+-j~~ &dLLL-J-&M' ./6'---
- ------,, I t s : I/? L,: -5- ,;&E*
fl,, //f
FRED A. BARTMAN, JR. i
MARITAL TRUST UNDER THE WILL
WILLIAM S. BARTMAN
/j?--YLk--/4[-' * ayrk- / &- < /L A7& i-- N
By: ,
Its: -7&s TLC&
-21-
i
RESIDUARY TRUST UNDER THE WIT
WILLIAM S. BARTMAN
By : ~&N~~'&&&,'~~~ /?
Its: q-&~~/i~-
ODMARK DEVELOPMENT CO. a corporation
By:
Its:
THE CITY OF CARLSBAD
By:
Its:
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN /? '0 Y /f ' 7)
By : A, ,/,f@&f Y /~&&$~g'',- RuF Oit
Howard J.
Attorneys fo Grove Apartments Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the
Will of William S. Bartman,
Residuary Trust under the Will
of William S. Bartman
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
-22-
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals as of the day and year first written above
GROVE APARTMENTS INVESTMENT 1
a partnership
By :
Its:
H.F.H., ,,I,TD. 1:
By : ?/ d y?/ ?4,n i ,',/ w7 1b-i
i /a ' q,Ctz).': fdU -. Its: f i
HARRY J. L. FRANK, JR.
BERNARD CITRON TRUST
By :
Its:
FRED A. BARTMAN, JR.
MARITAL TRUST UNDER THE WILL
WILLIAM S. BARTMAN
By :
Its:
-21-
RESIDUARY TRUST UNDER THE W
WILLIAM S. BARTMAN
By:
Its:
ODMARK DEVELOPMENT CO.
a corporation
By : hL
Its: PQ&.S/OGK
THE CITY OF CARLSBAD
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By :
Howard J. Rubinroit
Attorneys for Grove Apartments
Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the Will of William S. Bartman,
Residuary Trust under the Will of William S. Bartman
t
-22-
'1
RESIDUARY TRUST UNDER THE WI
WILLIAM S. BARTMAN
By:
Its:
TJ+EODMARK DEVELOPMENT CO. a corporation
By : 0.
Its: ym@&-m '
TEE CITY OF CARLSBAD
By :
Its:
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AVSTIN
By :
Howard J. Rubinroit
Attorneys for Grove Apartments Investment Co.; H.F.H., Ltd.; Harry 3. L. Frank, Jr.; Sernard Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the
Will of William S. Bartman, Residuary Trust under the Will
of William S. Bartman
Vincent Siondo, Jr.
City Attorney, City of Carlsbad
-22-
-..
PETERSON, THELAN & PRICE
By:
Development Co.
HJR167A
-23-
EXHI3IT 1
PARCELS D, E an2 E PRIME LEG.Z-L 3LSCPIF~IO~~S
. ..
1
Ytc 1;-d rtfrrrt? t: tcrcir 1: f:'tLi:Ed fr tft 5t~rc r! Cs!jfcrr.la, Ccr
5;: I-c~L. rr.5 LC cts-:::~: is ::i-c~s
PARCEL 1
Iortfons of Lots 8, 9, 10, 11, 12, 13, 14, 15 and 16 in Aosp Eucalyptus
Cotpany's 'Iract Kc. 1, lr. the City of Cbrlsbad, Cour.ty of Sar. Diego, St
California, eccordinc to Rap thereof No. 1136, flled In the Offlce of the
Recorder of San Diego County, June 8, 1906, described as follovs:
Cortmrncing at the Southeast corner of 68id Tract, thence dong the East 1
raid Tract Eorth 00'56'20" East, 2263.66 feet, said point being South 00'
West, 114.74 feet frOE the West Quarter corner of Section 32, 'Lovnship 11
%nge 4 Uest, San krnardiao Base 8nd Meridian; thence North 89'18'10"
46.07 fret to the True Point Of kginnlng; raid point bein& on a ~0n-t
curve concave Southeasterly 81d having a radius of 310.00 feet, a radial 1
raid point bears North 43'16'S3'' Veet; thence Soutbvesterlp along said through 8 central &%le Of 41.33'00" an arc distance of 224.81 feet;
leaving oaid curve Worth 89'18'10' Vest SS7.72 feet; thence South 61'25'08
305.23 feet, thence myth 10'19'07' West, 374.05 feet; tbence krth 79' East, 272.00 feet; thence North 02'01'30" Vest, 699.16 feet to a WiDt 00
tangent curve concave Southwesterly and h8visg 8 r8di~6 of 761.50 feet, 8
llnc to said point bears North 10'06'51' East, thence Southu6terly doq
curve through a centrd aqle of 03'23'09' an arc dirtrnce of 45.00 feet, 1
tangent to said cume South 76'30'00' East, 350.95 feet, thence North 1.00
thence South 76'30'00' East, 339.00 feet; thence South 350.00 feet; thence
06'51'53' East 261.11 feet to the True Polnt of beginning.
Excepting therefrca that portion derrlbed as follous:
Commencing at the Northeasterly corner of Csrlsbad Tract Ro. 77-2, Unit I
according to Hap thereof Bo. 9813 filed IO the Office of the County Pecorde
raid San Diego County, September 24, 1980; thence Worth 1'01'10' East, 8101 Easterly line of said Eosp Eucalyptus Forest Company's hact Ik. 1, 843.48
thence North 89'11'20' Uest, 46.07 feet to the True Point of Beginning an beginning of a nowtangent curve, concave Southeasterly ad bavisg a rad1
310.00 feet; thence Southerly dong raid curve through I central 8x1
41°32'50' an arc distance of 224.79 feet; thence lead* said curve,
89'11'20' West, 30.085 feet to the beginning of 8 nom-tangcot curwe, eo
Southeasterly ad havia a radius of 340.00 feet; thence krthtrlp .lo*
cume through a central angle of 4S'35'15' 8nd arc distance of 270.52
thence lerviq ufd cmt South 6.45'09" East, 36.41 feet to the True Poi1
.&
lbtglnnlng .
-- * C __-_ . .&
..
FhFCIL 2
E0rLiCr.F of LGtE e. 5, Itf, it. 17, lE, 23, 2L, 25. CECGR Street
Eucalyptu6 Street in Bosp Lucalpptus Forest Coupany's 'Irsct KO. 1, in t
of Carlsbad, Count)' of Sari Diego, State of Callfor~ia, according to Yap
No- 1136, filed In the Offlce of the County Recorder of San Diego Count
6, 1908 described 86 follovs:
Caltencing at the most Southwesterly comer of Lot 25 in said tract; along the Southwesterly line of sald Lot 25 Korth 23"27'45" Uect, 195.0
thence Korth 68"30'20" East, 360.41 fret to the ?rue Point of Beginning;
Korth 18"09'S7" jiest, 40.89 feet to the beginning of a tangent curve
liortheasterly and havi~g a radiub of 1042.00 feet; thence borthwesterl
said curve thru a central 8ngk of 14'35'28" 8n 8rc distance of 265.3
thence tangent to said curve North 03'34'35' West 94.02 feet to the begin
8 tangent curve concave Southwesterly 8nd h8ving 8 radius of 458.00 feet;
hrthvesterlp dong Said curve thru 8 central 8ngle of 22'18'38" an arc d
of 178.34 feet; thence tangent to said curve North 25'53'13" West 189.20 the beginning of 8 tangent curve concave Northeasterly and havlng a ral
1042.00 feet; thence Northuefiterlp do- raid curve thru 8 central 81
10'17'57' an 8rc dist8ncr of 187.30 feet; thence tangent to raid CUN~
15°3S1160 West, 108.41 feet to the beginni~ of 8 tangent curve t
Southvesterly and having I radius of 20.00 feet; thence Eorthvesterly do
curve thru central angle of 88'16'68' an arc distance of 30.82 feet to i of cusp vltb curve concave Rorthvesterly and having a radius of 831
r8did line to said point of Cusp bears South 13'52'04' East;
l8ortbeasterly along the 18st Bcntioned cune thru 8 central angle of 01'
an arc distance of 25.17 feet; thence tangent to raid cum€ North 74.24'44
140.00 feet to the beginning of 8 trngent tune CODCIV~ Rotthverterly and
8 radius of 838.50 feet; thence Northeasterly dong 8aid curve thru 8 e
8nglt of 13'24'/.b" 8n 8rc d%St.fhCe of 196.28 feet; thence tangent to raid
Lbrth 61'00'00" East, 174.31 feet to the beglnniqg of a tangent curve c
Southeasterly ad bving 8 radius of 761.50 feet, thence Easterly 830s
curve thru a centrd angle of 39'06'51' an arc dirtarrce of 519.85 feet;
South 00'01*~0' East 699.16 feet; thence South 79'40'53' West, 272.00
thence South 10'19'07' tst 374.05 feet; thence South 68'30'20' Uest,
feet to the True Point of bcginnlng.
Excepting therefra an 84 foot vide strip of land, 42.00 feet each ride
f oll oving de KT ibed cent er fine :
-encing at point on the Uerterly line of raid bt 25 distant tbercon
23'27'4s' West, 195.00 fett frm tbc Soutbuest comer thereof; thence b
.aid Vesterly line Rortb 68'37'10' East (Vecord Rorth 68'30*28" hrt pcr
402.52 feet to the True Point of Beginning; thence Rorth 18°03'07' Uest,
feet to tbe beginning of tangent curve, concave Easterly .pd bviqg I
of 1000.00 ftet; thence Joqg mid curve through 8 central .=le of 14.35';
arc distance of 254.64 feet; thence tangent to uid cum lorth 3'27'44'
109.90 feet to the bcgidpg of 8 t8ngent curve, CODCIVC iksttrly 8nd ha
radius of 600.00 feet, tbencc dong said cume through 8 ccntrd 8ng
---. r- - ..
9
25'22'3C~' ar erc Cirtsncc of 3%.3C fcrt; ttlcrcc tanFer.t to said tunc FI
:!'5:':Ls Lcs:, :(! .:5 ftt: t~ ttc ?ti-:::r+ tf i :,EF~(:: c~r\t ccr.:t-.f f;s:t
act t.a\ing b radius of 6CC.OS fcrt; ttlrr.ct a1cr.g 6ijid curve through 8 cer,
angle of 13'21'49" an arc distance of 186.59 feet; thence krth 15'28'25" L',
30.00 feet more or less to the Southerly right of way line of brron Road.
sidelines of catd 84 foot vide street shall terminate vith 20.00 foot fa1
return6 at said Southerly right of vay line of Yarron Road.
FARCEL 3
Portions of Lots 22, 23, 24, 25 and of EucelyFtus Street in ~orp ~Ucdp
Forest Cospanp'r Tract KO* 1, In thc City of Cerlsbad, Comty of Sari Di,
State of California, according to Hap thereof KO. 1136, filed in the Officc
the County Recorder of San Diego County, June 8, 1908, descrlbed as follow:
hmencing at the lost Southwesterly comer of Lot 25 in maid tract; thd
dong the Southve6terly line of said Lot 25 North 23'27'45" Uest 195.00 fc thence North 68"30'20" East 360.41 feet; theace h'orth 18'09'57" Vest 40.89 4
to the beginning of a tangent curve concave brrbe8sterly and having a radiu
1042.W feet; thence Northwesterly along said curve through a central angh
01'38'58" an arc distance of 30.00 feet to tbe True Point of Beginning; tbc continuing along mid curve through a central angle of 12'56'24L an arc dirt4
of 235.33 feet; tbence tangent to raid curve North 03'34'35" Uest 94.02 feci tbe beginnlag of a tangent curve co~cave Soutbuesterly and baving a radlui
458.00 feet; thence lJorthue6terlp dong said carve through a central angle
22'18'38" an arc distance of 178.34 feet; thence tangent to raid me I( 25'53'13" West 189.20 feet to tbe beginning of a tangent curve con(
brthearterly and bviq 8 radius of 1042.00 feet; thence Borthuerterlp .I
said curve through a central angle of 10'17'S7" an arc distance of 187.30 fc thence tangent to raid curve Rorth lS'35'16" Vest 108.41 feet to the begim
of tangent curve concme Southwesterly ad hvizg a radius of 20.00 fe thence Northuestcrly along said curie through a ccotrll angle of 88'16'48'
8rc distance of 30.82 feet to 8 point of reverse curve conc8ve brtherly
bving a radius of 838.50 feet; thence Westerly dong said reverse curve thrc
8 centra angle of 32'08'52' an &rc distance of 470.17 feet; thence 9 07'34'20" West 213.72 feet; thence South 64'59'00" East 248.29 feet; tbc
South 25'53'13" East 590.00 feet; thence Soutb 66'45'SO' East 330.26 feet to Tnae Point of Beginning.
ExceFtlng therefra an 86 foot rrlde strip of land, 42.00 feet each ride of
following described centerline:
mencing at a point on the Uesterfy line of rald Lot 25 dirtant tbereon lk
23'27'45" Uest, 195.00 feet frm the Southmst corner tbertof; tbence lea1
raid Westerly line North 68'37'10" hst (fccord Rorth 68'30'28' &st per de
402.S2 feet to the true Point of Beginning; thence DIortb 18.03'07' Wit, 3Li feet to the bcginniog of tangent curve, concme Zastcrly and having a rad of 1000.00 feet; thence dong said curve though a central angle of 14'35'23'
arc distance of 254.61 feet; thence tangent to 88ld curve loorth 3.27'44' Ut
109.90 feet to the beginning of 8 tangent curve, concave Uesttrfp ad hrvir
* --- . -. . -I .-.
c.
raCius of E@Cl.GO fret, thence along 68id curve througt a central angle
2: ET: C:E:E:;C c! 356.3: feet; tftrcf tergcr.: tr s~it CUT\(, p; 2:c;; * j(
2€'5C'iL' );Est, 106.15 fert tG the beginning of 8 t8nger.t curve concave E6t(
and having a radius of 800.00 feet; thence along cald curve through a cenl
angle of 13'21'49" an arc distance of 186.59 feet; thence Korth 15'28'2S" ut
30.00 feet pore or le66 to the Southerly right of vay line of Harron Road.
ridefioes of raid 84 foot vide 6treet rhall terminate vith 20.00 foot r.(
return6 at said Southerly right of v8y line of Harron Road.
ja/taf
EYAIEIT 2
PJ-RCEL F
LE C-.z-: frs c ‘I FT I c::
7
Ir
CVutnrtA 8
._ ,. * _----_ -_ 1 .-
c;::; '.-. :---*:-* 'c .
The land referred to herein is situeted lr, the State of California, (
San Dicgo, and is described a6 fo11ovs:
PARCEL I:
?'hose portions of Lots 19, 20, 21, and 33 and of Eucalyptus Street
EUCALYPTLS FOREST CO.VAKY'S TRACT NO. 1, in the City of Carlsbad, Count
Dlego, State of Callforola, 8ccordlng to Yap thereof So. 1136, file(
Offlce of the County Recorder of Sa0 Diego Couoty June 8, 1908, desc
f ollov~:
Commencing at the Southeast corner of said Lot 20; thence dong the
floc thereof, North 06'58'00' East 278.00 feet to the TRUE POINT OF BE
thence South 70'28'24' Uert fOS.81 feet; thence Borth 89'29'00' Vert 213
to a point on 8 non-tangent 162.52 foot r8dlus curve concave Rorth-8
radial line of which bear8 South 49'22'30' &88t to 88id point;
Ilorthcarterly along the arc of raid curve through 8 central angle of OS
a dl8t8nCe of 43.72 feet; thence tangent to raid carve, Eortb 35'12':
449.44 feet to the beginning of 8 t8Uent 490.00 foot radlur curve
Southe8rterly; thence florthc8rtcrly along the 8re of rald curve, th central angle of 37'47'39', 8 dirt8nce Of 323.22 feet; thence tangent
curve loorth 73'00'14' bet 111.94 feet to the bcglnniag of 8 tangeat 20,
r8diur tune CODIC~V~ Soutbwertcrly; thence krttrly 8nd Southeasterly a]
are of 881d curve, through a central angle of 86.40'30'. dht8nCt c
feet to the beginning of a revtr8e 842.00 foot ?.diu8 curve
Borthcarterly; thence Southc88terly aloog the arc of a8ld curve, th
central angle of 2i013'00', 8 dirtance of 363.72 toet; thence South 44
Ucrt 161.50 feet to a point vhfch bear@ lorth 70'28!94' East from the fB1: OF BEGIRZJfRG; thence Soutb 70*28'24' Vert 69.19 feet to the rauE P(
BZGIRNIBC
Ll1CEpTIWG fgEBEFROX those portionr lying Borthcrstcrly of the Southuestcr
of raid tUC81yptU8 Street.
PARCEL 2:
Those portionr of Lata 19 and 20 In EOSP tUCALnrZIIS ?OBEST CO?fPARplS Ipi
1, in the City of arlrbd, bunty Of s8n biCg0, St8tt of California, 8Cl
to W.p thereof lo. 1136, filed In the Office of the baaty Recorder of Sa
County, June 8, 1908, dtrcrfkd 88 folfour:
-r: -. -:-- -' .-- *. -1 . .. -- CiLfr !*:. 5::: ..-L ., * .
beblzr.?z:g at t);r SC';:~EES: ccrrirr c! sz:C Lct 2C; t?,e-:e alorg the Sot.:
line of raid Lots 20 and 19, North 89'29'00" Vest 761.61 feet to a point
nowtangeat 462.S2 foot radius curve corxavt Northverterly, a r.di.1 111
which bears South 29'16'10" East to raid point; thence Northeasterly a1on
8tC Of 88ld curve through 8 ceDtr81 8wle of 20'06'20' 8 dirtance of ]
feet; thence South 89'29'00' u8t 213.76 feet; thence North 70.28'24'
505.81 feet to an lntersectlon vith the EasterZy line of raid Lot 20; t
along raid Easterly line, South 06'58'00" West 278.00 feet to the poi1
Beginning.
PARCEL 3:
Thore portions of Lot8 19, 20, 21, 8ad 33 of Eucalyptus Street in
EUCALYPTUS FOREST COMPANY'S TRACT NO- I, in the City of Carlrbad, County p
Ditgo, State of California, according to Hap thereof blo. 1136 flled i
Office of the County Recorder of Sln Diego County June 8, 1908, dercril
follwo:
Commencing at the Southeast corner of #.Id Lot 20; thence along the tag line thereof; lorth 06°S8'00' hit 218.00 feet to the TRUE POXRI OP BEG11
tbence South 70°28t24' Vest SOS.81 feet; tbcoce 89'29'00' Uert 213.74 feel
point on 8 noo-talogent b62.52 foot radlur curve conc8vc Wrthulcrtctly, 8 I
line of which barr Soutb 49.22'30' East to maid point; thence Ilorthtac
along the arc of said curve, through 8 centrd 8rrgle 05'24'55', 8 dirtam
43.72 feet; thence tangcot to 881d CuTve, Bortb 3S012'35' hrt 449.44 fc
the beglonlug of 8 t8ngent h90.00 foot r8diur curve ton~ave southearl
thence Rortheaaterly 810- the 8rc of raid cume, through 8 central 8ry
37'47'39' 8 dirt8nce of 323.22 feet; thence tangent to 88ld curve,
73'00'14' m8t 111.94 feet to the beg1-w of 8 tangent 20.06 foot r8dfur
concave Southuertcrly; tbeace L.rtcr1y md sOUthe88te?lY alorg the 8rc ol
cume, through 8 central augle of 86'40'30' dirt8nce of 30.26 feet I
kglnrriag of a reverre 842.00 foot radius cume concave 1Jortbe8stcrly; i
Soutbcarterly along the arc of 88id came tbrough 8 ceott81 8qle Of 21'4.
8 dlstance of 363.72 feet; thence South 44°55'449 Uert 16130 feet to 8
which bears North 70.28'24' East from the TlUE POIRT OP IEGIIWIRC; thcacc
70'28'24' Vest 69.19 feet to the 'ZPDE K)IRT OF BEGIlCNIIJC.
tl%JPIIlC TEEBEppOW those portlonr lying Southuesterly of tbe Southuertcrl
of .aid tuulyptur Street.
rrjrdm
* . . EXHIEIT 3
RELEASED AGRECYXSTS
1. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 27, 1981, executed by the City of
Carlsbad and Grove Apartments Investment Company, recorded
January 30, 1981 as File No. 81-030961 of Official Records.
2. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 27, 1981, executed by the City
of Carlsbad and Grove Apartments Investment CO., recorded
February 10, 1981 as File No. 81-041815 of Official Records.
3. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 27, 1981, executed by the City of Carlsba2 and Grove Apartments Investment Co., recorded
February 17, 1981 as File no. 81-048012 of Official Records.
r , SELLE E SELLE
BROKl
LEND1
I % i BROKl
9
,.
First American Title Insurance Company
411 IVY STREET, (P.O. BOX 808) SAN DIEGO, CALIFORNIA 92101 (619) 238-1776
r!zxxcm INSmm1m
Escrow No. 944539G 55yfi'i)7C ci
CLkW FGi p tBaPVwQQT
\ j=r kv-3
Escrow Officer: Kate Nemec
Date: May 15, 1987
A. These instructions are executed and delivered pursuant to that certain "AMI
AND RESTATED AGREF3ENT FOR PURCHASE AND SALE OF REAL PROPERTYr dated Ma)
1987, between the parties thereto. A copy of said Agreement is attached hc
and made a part hereof. Escrow Holder is only concerned with the items tha'
to be complied with through this escrow. The other agreements are betweer
parties and Escrow Holder is not to be concerned with same. They are attach! reference only.
B. Regarding paragraph 1.3 of Agreement, parties acknowledge that there shal
three executed counterparts of said "Release Agreement" deposited into escro
disbursement by Escrow Holder at the close of escrow.
Paragraph 2.2 of said Agreement is hereby being amended as follows: Escrow H shall NOT notify the County of San Diego that the Property has been sold
public entity and shall NOT request cancellation of any real property tax
assessment obligations which otherwise would be required from and after the
of escrow. The only notification made through escrow will be by Escrow H
causing the Grant Deed to be recorded at the close of escrow. There shall
proration of property taxes by Escrow Holder. Property taxes due or payable
be paid in full by the Sellerr prior to the close of escrow. Reimbursemen
anyr beyond the close of escrow is to be refunded by the County Tax Coll
outside of escrow, directly to the Seller. Seller shall be responsible for [I
application for said refund. All other terms and conditions of said para
2.2 shall remain in effect and unchanged.
C.
D. The close of escrow is contingent upon the Cancellation of Escrow No. 90:
Escrow Holder's receipt of executed Cancellation Instructionsr prior to the
of escrowl shall release this contingency.
E. Parties hereto acknowledge and agree to abide by First American Title Ins1
Company's General Provisions attached hereto and made a part hereof.
G. Parties hereto acknowledge in order to wire proceeds at the close of escr
the Seller, Buyer's closing funds must be wired in. Escrow Holder shall
Buyer instructions to wire said funds to First American Title Insurance Cor
prior to the close of escrow.Or Buyer may de-psit' check 2 days prior to clc
H, Prior to the close of escrowl Seller shall cause Escrow Holder to be ha]
demandr if anyt and a Full Reconveyance to record at the close of e:
reconveying the Deed of Trust recorded October 23, 1986 as File No. 86-480(
Official Records. Escrow Holder is instructed to charge Seller's accour
recording said reconveyance and complying with demand, if anyl at the clc
escrow.
END OF INSTRUCTIONS:
SEE SIGNATURE PAGE ATTACHED HERETO AND MADE A PART HEREOF
T
\
--
i GENERAL PROVISIONS Escrow Nol. 9445396
'f t 1. Deposlt 01 Funds & Dlsbursements All funds received in thls escrow shall be deposlted In one or more of your general escrow accounts with any bank dol In the State of Callfornla and may be transferred to any other general escrow account or accounts. All dlsbursements sh
by your check. You are authorized not to close or disburse until good funds have been confirmed In escrow.
2. Prorations and Adjustments
The expression "close of escrow" used In this escrow means the date of whlch Instruments referred io hereln are r
All prorations andlor adjustments are to be made on the basls of a 30-day month unless otherwlse instructed In Y
You are authorized to record any documents dellvered through thls escrow, the recordlng of whlch Is necessary or
relates only to prorations andlor adlustments unless otherwlse speclfled.
3. Recordatlon of instruments
Issuance of the requested pollcy of tltle insurance.
Authorltatlon to Execute Asslgnment of insurance Pollcles You are to execute on behalf of the parties hereto form asslgnments of Interest In any Insurance policies (other than 111 called for In thls escrow; forward assignments and policies upon close of escrow to the agent with the request, flrst, thal sent to such transfer andlor attach a loss-payable clause andlor make such other addltlons or correctlons as may have
cally requlred hereln, and second, that the agent thereafter forward such pollcles to the parties entitled to them. In all acts In this escrow relating to Insurance, Including adjustments, if any, you shall be fully protected In assum
pollcy Is In force and that the necessary premlum therefor has been pald.
4.
5. Authorization to Furnlsh Copies
You are to furnish a copy of these Instructlons, amendments thereto, closing statements andlor any other documel In this escrow to the lender or lenders, the real estate broker or brokers andlor the attorney or attorneys Involved In thl upon request of the lenders, brokers or attorneys.
6. Personal Property Taxes
7. Right of Cancellatlon
No examination or Insurance as to the amount or payment of personal property taxes Is requlred unless speclflcz
Any party Instructing you to cancel thls escrow shall file notice of cancellation In your office, in writing. You shall wlthi time thereafter mall, by certified mall, one copy of the notice to each of the other parties ai the addresses stated In this E written objection to cancellation is filed In your office by a party within ten (10) days after date of mailing, you are autt
optlon to comply wlth the notice and demand payment of your cancellatlon charges as provlded In this agreement. If wr Is flied, you are authorlzed at your option to hold all money and instruments In thls escrow and lake no further actlon I directed, either by the partles' mutual written instructions, or final order of a court of competent jurlsdlctlon.
8. Actlon In Interpleader
The parties hereto expressly agree that you, asescrow holder, have the absolute right at your election to file an acflon requirlng the partles to answer and litlgate their several clalms and rlghts among themselves and you are authorlzed 1 the clerk of the court all documents and funds held In thls escrow. In the event such action Is flled, the partles jolntli agree to pay your cancellation charges and costs, expenses and reasonable attorney's fees which you are required to e in the interpleader action, the amount thereof to be fixed and judgment therefor to be rendered by the court. Upon 11
action, you shall thereupon be fully released and discharged from all obligations to further perform any duties or obligat Imposed by the terms of this escrow.
9. Termination of Agency Obllgatlons
If there Is no action taken on thls escrow wlthln SIX (6) months after the "the llmlt date" as set forth In the escn or written extension thereof, your agency obllgation shall terminate at your option and all documents, monies or othe you shall be returned to the parties depositing same.
In the event of cancellation of thls escrow, whether It be at the request of any of the parties or otherwise, the fe
due First American Title Insurance Company, Including expenditures Incurred andlor authorized shall be borne equal1
hereto (unless otherwise agreed to specifically).
10. Conflicting Instructions Should you before or after close of escrow recelve or become aware of any confllctlng demands or clalms with escrow or the rights of any of the partles hereto, or any money or property deposlted hereln or affected hereby, yo\
right to discontinue any or all further acts on your part untll the conflict Is resolved to your satisfaction, and you shall
right to commence or defend any act(on or proceedings for the deterrnlnatlon of the conftlcl as provlded in paragraphs
General Provislons.
11. Funds Retained In Escrow If for any reason funds are retained In escrow, you may deduct therefrom $20.00 as a monthly charge as cust
You are not to be concerned with any question of usury In any loan or encumbrances involved in the processir 12. usury
and you are hereby released of any responsibility or liability therefor.
Indemnity for Attorneys Fees and Costs
In the event suit is brought by any party to this escrow, Including the title company or any other party, as agt or others, including the title company, claiming any right they may have as against each other or agalnst the tltle ( that event, the parties hereto agree to lndemnlfy and hold harmless the title company agalnst any attorney's fees and co
Any Amendments or supplement to these escrow Instructions must be in writing. These escrow lnstructlons cor
13.
14. Amendments to Escrow lnsttuctlons
escrow between the escrow holder and the parties hereto.
15. Deposlt of Funds Escrow holder shall deposit all funds received In this escrow In any bank doing business In the State of Callforn affillated bank, First Amerlcan Trust Company, In one or more of their General Escrow Demand Accounts. These fur ferred to any other general escrow demand account or accounts.
TIME IS OF THE ESSENCE OF THESE INSTRUCTIONS. If this escrow Is not in condltlon to close by closing d page 1 hereof, and demand for cancellation Is received by you from any party to this escrqw after said date, you shall wlth the cancellatlon lnstructlons contalned In the general provislons on the prevlous pago hereof. If no demand !
made, you will proceed to-close thls escrow when the princlpals have complied with the escrow Instructlons.
*The Foreign Investment in Real Property Tax Act of 1980 as amended by the ' Act of 1984 places special requirements for tax reporting and withholc
parties to a real estate transaction where the transferors (Seller) is a r
alien or non-domestic corporation or partnership or is a domestic cor
partnership controlled by non-residents or non-resident corporations of F
The parties to this transaction are seeking their attorney's, accountant'
tax specialist's opinion concerning the effect of the Act on this transact
not acting on any statements made or omitted by the Escrow Holder.
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SIGNATURE PAGE
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SELLERS :
H.F.H., Ltd, a California Limited Partnership
BY:
Its Generai Partner
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FRED A. BARTMAN, JR.
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HARRY J. L. FRANK, JR.
__---_____________-----------------
CECILE C. BARTMAN, Trustee of THE
BERNARD CITRON TRUST
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FRED A. BARTMAN, JR., Trustee of THE
WILLIAM S. BARTMAN MARITAL TRUST
----__---_---____----------------_-
FRED A. BARTMAN, JR., Trustee of THE
WILLIAM S. BARTMAN RESIDUARY TRUST
BUYER:
THE CITY OF CARLSBAD, a Municipal Corporation
BY:
APPROVED BY:
ODMARK DEVELOPMENT COMPANY
BY:
BY:
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AMENDED AND RESTATED
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT is made and entered into as of this ji
of May, 1987 by and among the parties identified as Selle
on the signature page hereof (herein collectively "Seller
The Odmark Development Company, a California corporation
(herein "Odmark") and the City of Carlsbad, a municipal
corporation (herein "City" ) .
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WITNESSETH
WHEREAS, Seller is the fee owner of certain parcels
property in the City of Carlsbad known as Parcels D, E, E
and F, each of which parcels are more particularly descri
Exhibit A attached hereto and by this reference made a pa
hereof. Parcels D, E, E Prime and F are hereinafter some
CI sllectively referred to as the "Property";
WHEREAS, Grove Apartments Investment Co. and Odmark
entered into that certain Agreement for Purchase and Sale
Real Property and Escrow Instructions, dated as of May 31
1985, which was from time to time amended (the "Odmark
Agreement"), and which provided for the sale to Odmark of
Parcels D, E and E Prime. All of Odmark's right, title a
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interest in, to and under the Odmark Agreement are hereix
after referred to as the "Odmark Rights";
WHEREAS, Seller and City each are parties to that
certain Agreement for Purchase and Sale of Real Property
dated as of July 10, 1986 (the "Purchase Agreement") ;
WHEREAS, pursuant to the Purchase Agreement, on
November 4, 1986 a ballot measure was submitted to the vc
of the City of Carlsbad regarding, among other things, tl
acquisition of the Property by the City. Such ballot me(
received slightly less than the 2/3 affirmative vote req
and therefore was not approved;
WHEREAS, given the closeness of said vote, the City
nevertheless determined to acquire the Property upon the
threat, aTd in lieu of, condemnation of the Property, an
purchase and have assigned to it the Odmark Rights, prov
it obtained the requisite vote of the registered voters
within the City authorizing or approving such acquisitio
WHEREAS, the City caused the Acquisition Ballot Mea
to be submitted to the voters of the City of Carlsbad at
special election held on March 3, 1987, which Acquisitio
Measure was approved by receiving a majority of the vote
therefor, and which authorized the City to acquire the P
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and the Odmark Rights for cash and for the "Purchase Pricc
hereinafter defined); and
WHEREAS, Seller and City desire to amend and restate
entirety said Purchase Agreement solely in accordance wit1
terms hereof.
NOW, THEREFORE, in consideration of the mutual promi!
covenants hereinafter contained, and for other good and Vi
consideration the receipt of which is hereby acknowledged
parties hereto agree that the Purchase Agreement is hereb:
amended and restated in its entirety as follows:
1.0 Purchase and Sale of Property - Assignment and
Acceptance of Odmark Rights.
1.1 As used herein, the term "Property Close o
Escrow" denotes tho time at which Seller's deed conveying
to the Property tc the City is recorded.
1.2 City hereby agrees to purchase, and Selle
hereby agrees to sell, the Property, and Odmark hereby ag
to assign, and City hereby agrees to accept, the Odmark
Rights on or before July 3, 1987 on the terms and subject
the conditions hereinafter set forth. The purchase price
the Property and the Odmark Rights (the "Purchase Price")
shall be $6,457,834.55 if the Property Close of Escrow oc
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on or before June 2, 1987, and $6,572,934.55 if the Prope
Close of Escrow occurs after June 2, 1987 but before July
1987. Subject to Section 3.0 hereof, the Purchase Price
shall be payable in cash, or by certified or cashier's ch
through Escrow and shall be disbursed as follows: To Sel
$5,755,000.00 if the Purchase Price is $6,457,834.55, or
$5,870,100.00 if the Purchase Price is $6,572,934.55; to
Odmark, $702,834.55. Upon the Property Close of Escrow,
Seller shall immediately remit to Odmark the sum of $225,
representing the amount of all deposits previously paid
to Seller by Odmark under the Odmark Agreement. The City
hereby acknowledges that it shall have no right or claim
any of such deposits.
1.3 All parties hereto shall execute and deliv
to Escrow an Agreement for Settlement of Disputes and Mut
Releases (hereinafter the "Release Agreement") in the for
Exhibit B attached hereto, which Agreement shall be bindi
and effective upon the Property Close of Escrow.
1.4 Odmark and City shall execute and deliver
Escrow an Assignment of the Odmark Rights in the form of
Exhibit C attached hereto, which Escrow shall deliver to
City upon the Property Close of Escrow.
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1.5 Not later than five (5) business days foll
ing the execution hereof, Seller, City and Odmark shall o
an escrow ("Escrow") with First American Title Insurance
Company ("Escrowholder") and shall deposit with Escrowhol
fully executed counterparts of this Agreement for use as
Escrow Instructions, together with Escrowholder's usual f
of supplemental escrow instructions (if any) for transact
of this type; provided, however, that such supplemental
instructions shall be for the purpose of implementing thi
Agreement and such instructions shall incorporate this
Agreement by reference and shall specifically provide tha
provision thereof shall have the effect of modifying this
Agreement unless it is so expressly stated and initialed
behalf of City, Seller, and Odmark. By such deposit,
Escrowholder is hereby authorized and instructed to act i
accordance with the provisions of this Agreement. Seller
City, and Odmark shall each deposit such other instrument
documents and funds as are necesshry to effect the close
escrow in accordance with the terms hereof.
1.6 The parties hereto acknowledge and agree t
the Revised Stipulated Judgment by and between Seller and
City dated September 9, 1986, (the "Revised Stipulated
Judgment") is and shall remain in full force and effect
pending the Property Close of Escrow, and that, thereafte
the rights of the parties hereto thereunder shall termina
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except as expressly provided in paragraph 2.6 of the Rele
Agreement (Exhibit B). The parties acknowledge and agree
that, upon the Property Close of Escrow, the so-called ''5
Still Agreement" by and among the parties, dated July 10,
1986, shall automatically terminate and be of no further
force and effect as to the rights of any party hereto con
cerning the Property.
2.0 Policy of Title Insurance.
2.1 At the Property Close of Escrow, Seller sk
furnish through the Escrowholder, at Seller's expense, a
Standard Coverage Owners' Policy of Title Insurance for t
Purchase Price (excluding the amount allocated to the Odrr
Rights) from First American Title Insurance Company insur
title to the Property vested in City, subject to those
matters ("Permitted Exceptions") identified on Exhibit D
hereto, and the lien of taxes not delinqucnt. Seller bel
that it will be able to deliver a title policy at the apy:
priate Close of Escrow in accordance with the requirement
hereof. If, however, the title company shall be unwillir
issue such policy in such condition, City may waive the
discrepancy and close this transaction in accordance wit?
terms, or object to the discrepancy, in which case the tr
action (and all of the City's obligations hereunder) shal
terminate, and Seller shall not be liable to City for dan
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2.2 Real property taxes and assessments shall
aid by Seller through the Close of Escrow based on the 1i
tax information available to Escrowholder. Escrow shall
notify the County of San Diego that the Property has beer
to a public entity, and shall request cancellation of an!
real property tax or assessment obligations which otherw:
would be required from and after Close of Escrow. Sellei
shall convey title to the City in and to the Property by
grant deed; provided, that such grant deed shall recite 1
it is made subject to all matters of record and the Perm:
Exceptions.
2.3 City shall pay one half of the Cost of Esc
and Odmark and Seller shall each pay one quarter. Sellei
shall pay the Expense of any local documentary taxes.
Recording and other miscellaneous costs and expenses shal
be shared in accordance with the custom of the
Escrowholder.
3.0 Exchange of Property.
3.1 The parties identified herein as Seller hi
owned the Property (other than Parcel F) as partners of 1
partnership, and own Parcel F as shown on Exhibit F. Pr:
to the Property Close of Escrow, Seller has caused or wi:
cause such partnership to distribute the Property to the
respective Sellers so that the transactions contemplated
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hereby will take place at the individual partner level.
Accordingly, each individual partner is a separate Seller
even though it is agreed that the respective closing with
each of the Sellers are to be concurrent and conditional u
one another. In addition, each Seller shall have the rig?
as to his interest (or any portion thereof) in the Propert
to elect to cause the transaction as to such interest or a
such portion(s) to close as a tax free exchange" pursuant
to the provisions of Section 1031 of the Internal Revenue
Code. In the event that any such Seller shall elect to ca
the transaction to close as a "tax free exchange", City ar
such individual Seller agree that no such exchange shall
delay any Close of Escrow hereunder; and each Seller agree
that the City shall be indemnified from any expenses or cc
which may be incurred in connection with such exchange.
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4.0 Condition of Property.
4.1 City acknowledges that neither Seller nor
Odmark, nor any of Seller's or Odmark's employees, agents
representatives have made any warranties or representatiox
concerning or regarding the suitability of the Property fc
construction or support of structures of any type, it5 us(
a public recreational facility, or for any other purpose c
use.
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5.0 Representations and Warranties.
5.1 The City hereby represents and warrants to
Seller and Odmark as follows:
5.1.1 City has the full and lawful power
authority to enter into this Agreement and consummate the
transactions contemplated hereby and by the Acquisition
Ballot Measure.
5.1.2 The City has completed the required
environmental documentation in compliance with the Califc
Environmental Quality Act, relative to the acquisition of
Property, and the City’s Planning Commission has made the
requisite finding relative to the acquisition of the Prop
pursuant to California Governmental Code Section 65402.
5.1.3 The City has no present intention t
develop the Property other than for park and/or open spac
purposes.
5.2 Odmark hereby represents and warrants to
Seller and City as follows:
5.2.1 Odmark is a corporation duly organi
and validly existing and in good standing under the laws
the State of California and has all requisite corporate F
and authority to enter into this Agreement and to carry c
the transactions contemplated hereby.
5.2.2 All necessary or appropriate corpoi
executiol acts and procedures required for authorization,
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delivery of this Agreement by Odmark have been lawfully ai
properly taken.
5.2.3 Other than an assignment to Collins
Development Corporation ("Collins") , Odmark has not assigl
(a) the Odmark Rights and/or Odmark Agreement, or (b) any
claims that it may have under, arising out of, or in
connection with Odmark's attempts to develop the Property
and/or the Odmark Agreement, and/or the Odmark Rights.
5.3 Seller hereby represents and warrants to tl
City and Odmark as follows:
5.3.1 That as to that portion of the Propc
other than Parcel F, and subject to paragraph 3.0 above,
it is a general partnership organized and existing under .
laws of the State of California, having its principal plal
of business in the County of Los Angeles, California, and
authorized to execute this Agreement on behalf of Seller.
5.3.2 That those persons identified as Se
have among them persons with the full authority necessary
fully and completely convey all right, title, and interes
Parcel F to City.
5.4 All representations and warranties contain
ir, this Agreement and any of the Exhibits hereto made by
of the parties hereto shall survive the Property Close of
Escrow.
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6.0 Rescission of Government Actions, Dismissal of
Litigation, Assumption of Liabilities, Indemnities, and
Release of Claims.
6.1 Seller, Odmark and City hereby agree that
upon the Property Close of Escrow, City shall rescind th
actions and decisions of the City Council of the City ce
ying a Final Environmental Impact Report concerning the
proposed development of the Property, and approving a Ge
Plan Amendment, Land Use Plan, Site Development Plan, zo
changes, and Master Plan amendments concerning the Prope
which were and are the subject of a referendum petition
"City actions and decisions").
6.2 Seller, Odmark and City shall, upon the
Property Close of Escrow, each release any claims it ma
have against any other party hereto with regard to any o
City actions and decisions.
6.3 Seller, Odmark and City hereby agree that
upon the Property Close of Escrow, Seller and Odmark sha
file a Request for Dismissal of Civil Action No. N36215,
entitled Odmark Development Company, et al. v. City of
Carlsbad, et al., each party to bear its own costs.
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6.4 Seller, Odmark and City hereby agree to
execute the Agreement for Settlement of Lawsuit and Relea:
attached hereto as Exhibit H, and hereby authorize their
attorneys to execute and cause to be filed a Request for
Dismissal Without Prejudice of the action entitled
"FrieAds of Hosp Grove, etc. v. City of Carlsbad, being C:
Action No. N35426 in the San Diego Superior Court.
6.5 Upon the Property Close of Escrow, City shl
execute and deliver to Seller and Odmark concurrently wit1
the close of such Escrow, a general release of Seller and
Odmark and of their agents, employees and partners (in thl
form of Exhibit B) from any and all claims, losses or dem
of any kind whatsoever arising out of or connected with t
condition of the Property previously or hereafter existin
occurring upon the Property or unsuitability of the Prope
for any use, and hereby agrees to hold Seller and Odmark
harmless from any such claims, etc. brought by a purchase
user of any of the Property from City, except any claims,
etc. arising from any negligent acts of Seller, Odmark or
their agents.
6.6 Odmark agrees to indemnify, defend and hol
Seller and the City, or either of them, harmless from anc
against any and all claims, demands, suits, loses, damage
costs, expenses (including attorneys' fees), and liabilil
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which may be imposed on, incurred by, or asserted against
Seller or the City, arising out of or in connection with I
based on Odmark's breach of the warranties and represents<
tions contained in paragraph 5.2.3 above, and further agrl
to obtain from Collins and to deliver to Escrow an Agreem
and Release in the form of Exhibit G attached hereto.
6.7 City hereby agrees (a) to release and disc
Seller from any and all of the obligations of Seller unde
the agreements identified on Exhibit E hereto, and (b) to
assume and fully and timely perform all of the obligation
Seller under the agreement identified on Exhibit E-1 here
7.0 Miscellaneous.
7.1 Attorneys' Fees. If either City, Seller c
Odmark commences an action against the other to enforce a
cf the terms of this Agreement or because of the breach k
City, Seller or Odmark of, or any dispute concerning, an1
the terms hereof, or if Escrowholder commences any actior
with regard to the Escrow, the losing or defaulting parti
shall pay to the prevailing party (and to Escrowholder ix
case of any action by Escrowholder) reasonable attorneys'
fees, costs and expenses incurred in connection with the
prosecutlon or defense of such action.
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7.2 Notices. All notices, deliveries and demanl
of any kind which any party may be required or may desire
give or serve upon another shall be made in writing and sh
be delivered by personal service or sent by registered or
certified mail, postage prepaid, return receipt requested,
the address of that party set forth below:
If to City: City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008-1989
Attention: City Manager
With a copy to: Vincent F. Biondo, Esq.
City Attorney
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008-1989
Attention: City Manager
If to Seller: HFH, Ltd.
10738 W. Pic0 Boulevard
Suite 3
Los Angeles, California 90064
With a copy to: Sidley & Austin
2049 Century Park East, 35th Floo
Los Angeles, California 90067
Attention: Howard J. Rubinroit,
and
John Bartman
9601 Wilshire Boulevard
Suite 810
Beverly Hills, California 90210
If to Odmark: Odmark Development Company
1747 Hancock Street, Suite B
San Diego, California 92101
With a Copy to: Peterson, Thelan & Price
530 "B" Street
San Diego, California 92101-4454
Attention: John D. Thelan, Esq.
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Any such notice sent by mail shall be deemed to have been
received by the addressee on the fifth business day after
posting in the United States mail unless actually receivec
earlier. A party may change its address by giving the otk
parties written notice of its new address as herein provic
8.0 General Provisions.
8.1 Effect of Waivers and Consents. No waiver
default by any party or parties hereto shall be implied fi
any failure or omission by a party or parties to take any
action on account of such default if such default persist:
is repeated, and no express waiver shall affect any defau.
other than the default specified in the express waiver, ai
that only for the time and to the extent therein stated.
or more waivers of any covenant, term or condition of thi:
Agreement by a party or parties shall not be construed to
a waiver of any Fubsequent breach of the same or any othe
covenant, term or condition. The consent or approval by
party or parties shall not be deemed to waive or render
unnecessary the consent to or approval by said party or
parties of any subsequent or similar acts by a party or
parties.
8.2 Modification of Agreement. Thls Agreement
be amended, modified or changed only by a written instrum
signed by City, Seller and Odmark. In the event of any
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conflict between the provisions of this Agreement and any
subsequent escrow instruction, as such may be amended fro
time- to time, this Agreement shall control as between Cit
Seller and Odmark unless the escrow instructions express1
state that this Agreement is being amended thereby and sa
escrow instructions are signed by City, Seller and Odmark
8.3 Construction of Agreement. The language i
all parts of this Agreement shall be in all cases constru
simply according to its fair meaning and not strictly for
against any of the parties hereto. Headings at the begin
of Sections and Subsections of this Agreement are solely
the convenience of the parties and are not a part of this
Agreement. When required by the context, whenever the
singular number is used in this Agreement, the same shall
include the plural, and the plural shall include the sin?
the masculine gender shall include the feminine and neute
genders and vice versa; che word "person" shall include
corporation, partnership or other form of association; ar
the words "City", "Seller" and "Odmark" shall include the
respective heirs, personal representatives, successors ar
assigns, if any, of them.
8.4 Choice of Law. This Agreement and the tri
action herein contemplated shall be construed in accordai
with and governed by the laws of the State of California
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applicable to instruments in all respects made, delivered
and to be performed solely within the State of California
8.5 Merger of Prior Agreements and Understandii
This Agreement, the Revised Stipulated Judgment, and the
Exhibits hereto and thereto contain the entire understand
between the parties relating the purchase of the Property
assignment of the Odmark Rights and all prior or contempo
aneous agreements, understandings, representations and
statements, oral or written, are merged herein and shall
of no further force or effect.
8.6 Further Acts. Each party, upon the reques
the other, agrees to perform such further acts and to exe
and deliver such other documents and instruments as are
. reasonably necessary to carry out the provisions of this
Agreement.
8.7 Severance. Should any portion of this
Agreement be declared invalid and unenforceable, then SUC
portion shall be deemed to be severed from this Agreement
shall not affect the remainder thereof.
8.8 Rule Against Perpetuities. The transactic
contemplated hereby must be consummated, if at all, with:
the time permitted by the Rule Against Perpetuities,
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including modifications thereof, currently in force in the
State of California.
8.9 Incorporation of Exhibits. Exhibits A thrc
H are hereby incorporated into this Agreement as if set OL
in full at the reference thereto herein.
8.10 Memorandum of Agreement. Subject to the
following sentence, City shall not record this Agreement c
any evidence hereof. However, at the request of City, Sel
and Odmark shall execute a memorandum with respect to this
Agreement which City is hereby authorized to cause to be
recorded in the Official Records of San Diego County. SUC
memorandum shall not change or otherwise affect any of the
obligations or provisions of this Agreement.
8.11 Execution in Counterparts This Agreement
be signed in counterparts with the same effect as if all
parties hereto had signed the same signature page. All
counterparts shall be construed together and shall consti'
one Agreement. Any signature page of this Agreement may 1
detached from any counterpart without impairing the legal
effect of any signatures thereon, and may be attached to
another counterpart identical in form thereto but having
attached to it one or more additional signature pages.
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1 8.12 Effect of Agreement to Purchase Price. Cit
agrees that it will not argue in any legal or equitable
proceeding between it, Seller and Odmark, or any of them,
that Seller's and Odmark's agreement herein to the Purchaz
Price (as it relates to both the Property and the Odmark
Rights, respectively), or Seller's and Odmark's execution
this Agreement is evidence of the fair market value of thc
Property or of the Odmark Rights.
8.13 Limitation of Remedies. It is hereby agrec
that other than as a result of the City's failure to purcl
the Property at the Property Close of Escrow and/or to pal
the Purchase Price specified herein, no party hereto shall
have the right to recover or seek recovery of damages fron
the other by reason of any breach or default by such othei
party of any of the terms of this Agreement, and that the
sole recourse for any such breach or default sha.'l be to
seek non-compensatory relief, including, but not limited t
by way of writ of mandamus or prohibition, declaratory
relief, injunctive relief, specific performance, contempt,
similar remedies.
8.14 Purchase Agreement Superseded. Upon the ft
execution of this Agreement by the parties hereto and the
delivery of this Agreement to each party, this Agreement :
automatically supercede the Purchase Agreement; the Purchi
-19-
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Agreement shall be of no further force and effect; and Sell
City shall be relieved of all obligations under the Purchas
Agreement.
8.15 Survival. The representations and warrantic
contained herein shall survive the Property Close of Escrot
IN WITNESS WHEREOF, City, Seller and Odmark have
executed, or caused this Agreement to be executed by their
authorized officers, agents or representatives, as of the (
year first above written.
GROVE APARTMENTS INVESTMENT (
a partnership
/'
By: / '* .L4 -5;;&%&L L& 1
Its: ?//k< z/i;
H.F.H., LTD., a California
limite5 Eartnersh$p *
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By : I, &, y,,/ -
XOBERT GET2,- -- [-
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Its: General Partner
BERNARD CITRON TRUST
r Lc;r &/A 'r
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4 By :
Its: -z+.ST&E I z&-,,&& d pw y\t- /
FRED A. E-L?TMAN, JR. /
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MARITAL TRUST UNDER THE WIL
WILLIAM S. BARTMAN
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/ ” A7 Its: I, ILLS </Z G
RESIDUARY TRUST UNDER THE W
OF WILLIAM S. BARTI”
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By- Gig4 &LC-ttL-d-?.
/\ ,/- 1, Its: p,h5 / ISL
THE~;E
Its: Qm/flr<*
By :
FORM AND CONTENT:
PETERSON, THELAN & P 4 J hn Thelan
SIDLEY & AUSTIN
Howard J. Rubinroit HJR187B
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PARCELS D, E an2 E PRIME LfC.:-L zfsC?IF’I@::S
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?ARCEL 1
fortions of Lots 8, 9, 10, 11, 12, 13, 14, 15 8nd 16 in Hosp fUC8lyptu$
Corprny'c 7rsi:t b. 1, ir the City of Ckrlstad, Court> of Sar Dfego, Std
California, accordin1 to Rap thereof KO. 1136, filet in the Office of the
Recorder of Sun Dicgo County, June 6, 1906, dercribd 8s follows:
bmrnciog at the Southeact corner of raid Tract, thence 81ong the E:agt 1 raid -act North 00'56'20" hst, 2263.66 feet, sald point belug South 00'
&st, 116.74 feet fron the Vert Quarter corner of Scction 32, 'IOvn6hip 11
Uoge 0 &st, San krnrrdlno brte aDd Meridian; thence Wrth 89'18'10"
46.07 feet to the True Poiat of Beginning; raid point king on DOPI
curve CODC8VC Southeasterly 8d h8Vipg 8 radius Of 310.00 feet, 8 radirf ]
&aid point bears Worth 43'14'S3** Vert; thence Soutbuerterly along said
through 8 central aqle Of 41'33'00' 8~ arc dirtaacc Qf 224.81 feet;
fuving raid curve Yorth 89'18'10' Yert 557.72 feet; thence South 61.25'04
305.23 feet, tbeocc Wrth 10'19'07' Utgt, 374.05 feet; tbence North 79' art, 272.00 feet; thence Worth 02'01'30' Yest, 699.16 feet to a point on
tangent curve conc~ve Southvcrtcrly and having 8 radius of 761.50 feet,
liw to #:aid point burs North 10'06'51' Last, thence Southurterly .fog
ewe through a centrd awle of 03'23'09' an arc dlrtrnce of 45.00 feet,
tangent to said curve South 76'30'00' act, 350.95 feet, thtnct North 1.N
thence South 76'30'00' East, 339.00 feet; thence South 350.00 feet; thenel 06'51'59' East 261.11 feet to the ?rue Point of Btginning.
kccpti& thcrefra that portion derribtd 8s follows:
Corroencing at the lorthe*sterly corner of Clrbb8d hart Ro. 77-2, Unit accordimg to kp tkreof Ib. 9813 filed In the Offlce of the COMtj Beeor,
raid San Dicgo County, September 26, 1980; thence liorth 1'01'lO' East, a1
hrterly l3m of wid Borp Eucrl~tur torcst Caaprny'8 hrct 130. 1, W3.4
thence North 89.11'20' West, 46.07 feet to the True Polat of Beglnnlng beginning o!f a ooa-tao&ent curve, concave Southe8rterly ad brvlpg a 11
310.00 feet; tbcnce Soutbtrly dong r8id cume through 8 central 81
41.32'50' .a arc distance of 224.79 feet; thence 1e8vix ufd curve,
69'11'20" Yert, 30.085 feet to the k8inrring of 8 oon-tan#cot curve, Soutbcartcrly ad haviq a radius of )cO.Oo feet; tbeDce brthcrly .lo
cune throcsh a centrd 8bgh Of 4S035'15- 8ad 8rC dirt8occ Of 270.5
tbcnce leaving wid curve Soutb 6.45'09' tst, 36.41 feet to tbe true E
Btgitlnlng
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tort1cr.c o! Lttr 1. 5, I(, if. 17, I€, 23, 2~, 25. czr.cr. streel
Eucalyptus Street In Borp Eucalyptus Forest Cogpany'r ?rrct )io. It fn
of Carlrbrd, Count) of Sin Dle&o, State of C821forriia, rccordlq to Va
No. 1134, filed io the Offlce of the Comty Recorder of Jln Olego Cou
6, 1908 described 8s follovr:
CaeenclnE at the 606t Southvertcr1y corner of Lor 25 In raid tract
rlorg the Southwrster1y line Of cald Lot 25 Borth 23'27'45' best, 191,
thence berth 6Eb3O'20' East, 360.41 fret to the True Point of Beglnnjni Korth 18"09'57" JieEt, 40.89 feet to the bcpinnlq of r tangent cum(
bortherrtcrly and hrving 1 radius Of 1042.00 feet; thence Korthvertel
sald curve thru 8 ceDtr8.l a%lr of 14'35'28" an arc dlrtrncr of 265,
thence tangent to raid CUYVL North 03'34'35' West 91.02 feet to the beg:
a tangent curve CODC~VC Southvesterfp and h8visg 8 radius of 458.00 fee!
Northwcrtcrlg along raid curve thru 8 central angle of 22'18'38' an arc
of 178.34 feet; thence taugent to uld curve North 25'53*13' West 189.2(
1062.00 fett; thence Rorthwsterly dosg e8ld curve tbm a ceotrd
10'17'S7' am arc dirtrnce of 187.30 feet; thence Uagcnt to &rid cur
15°35'160 Vest, 108.11 feet to the beginnlog of 8 tangent curve
Southvtrtcrly and bvfog 8 radlus of 20.00 feet; tbencc Eorthuerterly d
cmc thru I central angle of 88'S6'48' 813 arc dirtaocc of 30.82 feet to of cusp vitb 8 curve coucme Oortberterly ad hvlng 8 radius of 8'
radial Une to said point of cusp berrr South 13'52'06" tist;
Dortbc8cterly dong the 186C 8cotfo~ed cufoc thru 8 central angle of C
an arc distrrnce of 25.17 feet; thence tangent to mid CURL mrth 74.21'
140*00 ftct to the begiming of 8 Ungent curve concave lorthvcrterly an
8 radias of 838.50 feet; theDce lorthr8rrerly doag mid cure tbru 8
krtb 61'00'00' East, 174.31 feet to tbe bepinniq: of a tangent curve
SouthurstrIy sad having a radius of 761.50 feet, thence hrttrfy rfc
tune thru 8 central 8ngle of 39'06'52" .a arc dirtrncc of 519.85 feet
South 00'01.*30' Last 699.16 feet; thence South 79'40'53' Uert, 272.C
thence South 10'19'07' hst 371.05 feet; thence Soutb 68'30'20' wit,
frtt to the True Point of Begifinlag.
Excepting tbcrefra .D M foot rlde 8trip Of had, 42.00 feet each rfdc
foll oviq de scribed center he:
Camtnclng at I poiat 08 the Verter1y lint of rrld kt 25 distant tbercr
23'27'4S- liest, 395.00 feet ftai the Soutbuert comer tbcreof; tbeace
rrld Westerly line Eortb 68'37'20- &st (tccord lorth 68'30'28' &art pt
40232 feet to the True ?oint of Beginning; thence brth 18.03'07' Uert
feet to ebe begloolug of a matgent cumt, c~l~c8vc Easterly trrd hiag a of 1000.00 feet; thence Joq uld curve through I central aqle of 14'3!
arc dlrtmce of 254.64 feet; tbeoee tangent to uld eume krtb 3.27'44 109.90 feet to the bagianiq of a t8aaent curve, concave Ikrtrtlj 8rd b
radius of 800.00 feet, thence elow uid curve throuah a central
the &ginning Of 8 t8qent CurOe COnC8VC lOrthe86ttrly 8Dd &Ving 8 X
8q1c *Of 13'21'J.4" 8B 81C di6unCc Of 196.28 feet; tbtace t8qCDt to e8
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/
25'22'3(' ar LTC dirtancc O! 3%.3C ftrt. tbtfrct tsnrert to rri~ cur\( .. __ -L bfs:, :('.:5 ftt: tr t'L !tt.--:rq c! E :LT~(:: c~rxt CCT.=&-,~ 1;
ark k,.axinl r-rstiur of 6:C.K frct; ttlc:cc r3cr.i refd curve throqt. a c
rrqlc of 13*i!1'19' rn 8rc dirtaoce Of 16C.59 feet; thence brth 15'2e'Z5" 30.W feet more or less to the Southerly right of vay line of Marroo Road
ridelines of raid 84 foot wide 8treet ahall ttmlnrte vlth 20.00 foot
returns at raid Southerly right of ury line of ?!!rroa Rod.
FARCE1 3
Portions of Lots 22, 23, 24. 25 and of LUCtlYftUS Street in HOSP ~ucr
Forest Conpaay's fract KO. 1, in the City of Carlsbrd, County of Qn
State of Califonla, 8ccordif~g to hp thereof KO- 1136, filed $0 the Off
the County Recorder of Sen Diego hmtgb June 8, 1908, described 8s follow
hmencing 8t the most Southverterb corner of Lot 25 io raid tract;
dong the Southwesterly line of raid Int 25 Wrth 23'27'45' West 195.00
thence North 68'30'20" East 360.41 feet; thence Korth '18'09'57' Vest 4o.e
to the bcgi~aiag of a tangent curve concave brthe8rterly ad b~i- 8 rat 1WZ.OG feet; thence Northwesterly .long raid curve through a central 8U
01'38'58' an arc dlrtrnce of 30.00 feet to the true Point of Ileglmring;
continuing dong uid curve thraugh a central rqle of 12'56'26' an arc di
of 23S.33 feet; thence tangent to raid curve lbrth 03'34'35" Utrt 94.02 f tbc begianimy of a taugent cume coacave Soutbwetterl~ and bming 8 rad
458.00 feet; thence Rorthuesterly dong raid eane through 8 ccotrd an
22'18'38" 81) arc diSt8DCe Of 178.34 feet; thence t8ngeot to said curve
25'53'13' Yert 189.20 feet to tbe bcgirmiqg of a tangent curve c
brtbearterly and bvlng 8 r8diuc Of 1012.00 feet; thence Rorthuertcrly
mld curve t.hrough a central .=le of 10'17'57' an arc dictanee of 387.X
thence taapttnt LO 8rid tunc Rorth 15'35'16' West 108.41 feet to the bel
of a tangenlt crxvc conct-Je Southnrterly rad having I radius of 20.00
thence Nortlbvesterfy dong raid curve through a central angle of 88'16' arc dirtancct of 30.82 feet to r pint of reverse curve coocave brther
hving r radius of 838.50 feet; thence Westerly along uLJ revetlie came 1
a ccntrj rBrrg1C of 32'08'52' an arc distance of 470.47 feet; thence
07'34'20" Yest 213.72 feet; thence South 61'59'00' East 218.29 feet;
South 25'53'13' East 390.00 feet; thence South 66'45'50' East 330.26 feet
True Point of Beginning.
kceptirrg t'herefra 80 84 foot wide 8tTip Of hod, 42.00 feet each 81th
folloviag daacribd cent et line :
bobencing at a plat 00 the krter1y line Of r81d bt 25 distant thereor
23'27'15' Mest, 19S.00 feet frer tbe Southwest comer thereof; tbeaee I raid Verterly line llortb 68'37'10' tst (ftcord lorth 68'30'28' East pi
402.52 feet to the True Wint of kgimlq; thence krtb 18'03'07' &st, feet to the beginnlag of 8 weat came, coneme &rterff d hviq a of 1000.00 feet; tbeoce dong mld twe though I central a-le of 14'35'
arc dirt8ncr of 254.64 feet; thence t8ngtnt to 08id tune lortb 3°27v4ia
'i''', .
109.90 feet to tk beginaiPg Of 8 t.weDt CUtTC, CODC8Ve w8terlY 8d bp
---. .. * . :8-
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rrCr~~ of €@Cn.GO feet, thence along grid curve throw€) central rng
2tr5C'iL' k;rbt,' lCit.14 fctt tG tht bthir.r.fnf of 8 tangerr curve conca\t fa:
ami hrvlrg D radius of 800.00 feet; thence along grid curve through I ce
angle of 13"21'19" an arc dlrtaoce Of 186.59 feet; thence borth 15'28'25"
30.00 feet =re! or less to the Southerly right of vag line of hrron Road.
rldeliocr of raid 84 foot vide street rhall ttmiaate rlth 20.00 foot 1
retmos at rald Southerly right Of vay 1lDC of Harron Road.
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PA.RC,^EL F
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The land referred to herein is 6itU8ted in the St8tr cf California
$80 Diego, 8l?$ 18 described 86 follovr:
?ARCEL 1:
Those portions of Lots 19, 20, 21, and 33 and of Eucalyptor Stre
RICAlYPlTS FOREST COAS?A?iY'S TRACT NO. 1, io the City of Carlsbad, &I
Dlego, State of C8lifOrnia, 8CCOrding to Yap thereof So. 1136, fi
Office of the County Recorder of San Diego Caunty June 8, 1908, de
f of. low8 :
Comencirrg at the Southeart corner of raid tot 20; thence .long ti
line thereof, north 06'58'00' brt 278.00 fee2 to the TRUE POINT op thence Soutlh 70'28'24' Yeat SOS.81 feet; thence North 89'29'00" weat ~
to 8 point on 8 aox~t8ngent 46232 foot radiur curve concave Uottht
radial llne of vhich bc8rr South 49'22'30' art to raid poi
lorthc8rtcrly along the 8rc of raid tume throtqh 8 central aqZe of
u9.44 fee!: to the beginntug of 8 tanseat 490.00 foot r8d8u8 cur
Southcarter1y; thence Ilorthcaaterly alozq the arc of raid eunve,
ccatr.1 angle of 37*47'39', 8 dfrtmce Of 323.22 fact; thmaCQ tange
curvt Ilorth 73'00'14' kat 111.96 ftet to the beplnniq of 8 taqent
?.diu8 tunre concave Soutbvrcsterly; thence hrterly and Southerrterly
feet to the begianlng of 8 tevtrae 842.00 foot r8diu8 cum
Dorthc8rteirly; thence ~utherrtet1y along the arc of 88fd curve, ttntrrl mgle of 21*43'00', 8 dlrt8nte e:". 363.72 tset; thence South
wert 16X.50 feet to point dieh bc8t8 RFrth 70°2694' &rt from the
O? BECIM.IIC; thence South 70'28'24' Vert 69.19 feet to the fpue
ItGIrnffG
UCLPZlRG ~PLFROH thore pottioar lylq lorthcrrterly of the Ifouthues
of raid tucalyptur Street.
?Urn 2:
thore portionr of Lotr 19 and 20 in BOSP tUCbtfPIDS ?OUST CMPM'S 1, la the City of Clrlrbad, bunty of Sln Diego, State of California,
to Map thtcrrof lo. 1136, filed in the Office of tbe brmty Recorder of
bunty, 34me 8, 1908, dtrcrihd a8 follour:
8 diatauce Of 43-72 fe@t; tbaocc tawtat to 88id curve, Bortb 35.1
8YC of raid CWVt, thr0-b 8 Ctntt.1 8Wk Of 86'~0'30', 8 dfstancc
. . ... . t ; -', . :'. -, .. .. .- c';,:: !.:. ';:jt..-L '
5
bebizr.:-g at* tF,E Sc;:Fris: ccrTor C! SZ:? Zct 2C; t?c-:e MIOZf tbc
line of raid Lata 20 and 19, h'orth e9'29'00' Vest 761.61 feet to a
aoo-tan8eat 162.52 foot radius Curve Concave Worthuerterly, @ radii
vhlcb berrr South 29'16'10' Eart to said point; thence Northeasterly arc of raid curve throqh central angle of 20'06'20' 8 dirtaact
feet; theoccc South 89'29'00' bot 213.74 fett; theace North 70'21
303.81 feet to an lnterrectfoa with the Easterly line of oald Lot along said Easterly line, South 06'58'00' West 278.00 feet to the
Beginning.
PARCEL 3:
fborc portioar of toto 19, 20, 21, 8nd 33 of Lucalyptus Street
EUCALYPTUS I'OREST COKPAKY'S TRACT NO. 1, In the City of Carlsbad, C~UI Diego, State of California, 8CCOrdiag to !Sap thereof flo. 1x36 fill
Office of the County Recorder of SIn Diego bunt7 June 8, 1908, der
f 01rwr:
Comenciag at the Southcrrt corner of rrld Lot 20; tbante along the
fiat tbcrcof; Hortb 06'58'00' bat 278.00 feet to the rPDE )OUT Of 1
tbence South 70'28'24' Vert 505.81 feet; thrice 89'29'00' Ueot 213.74 piat 08 8 norrtrqcot 462.52 foot t8dIar curve COZIC~V~ Ikrtbnrterly,
line of vh:teh bear. South 49.22'30' krt to raid point; thence Rort
a1oq the arc of raid eurrc, through 1 central mqle 05*24'59'', a df
43.72 feet; thence taageot to 88fd cane, lorth 3Se12'35- Ust 449.4 tbc beginning of a taqeot 490.00 foot r8dlur curve eoncave South
tbcoce lorrbearterly 810% tbe 8rc of 88fd cumt, through 8 teotral
37'17'39' (R distance of 323.22 feet; thence taageot to raid cun
73'00'14' La8t 111.94 feet to tbc begionfq of 8 t8rgeot 20.00 foot rad
toauvt Soutbnrter~y; thence trrterly and Swtbcrr :etly 8foq the art
cume, through 8 central aqlc Of 86'40'30' 8 dlrtaucc of 30.26 fee
kglnnfng of 8 rcveroe 842.00 foot trdlar cullc coauve Rortbearterl]
~utbc8rttrly dorq the arc of raid come throqh central iqle of 24
8 diotancc of 363.72 feet; tbeocc South b4-55'44' Vert 161.50 feet to which bc8rlB lortb 70'28'24' bot fta the tlrIc1! ?OIR 01 BECIHNIRG; the1
70'28'24' West 69.19 feet to the lWE )om 01 BECfWNfRG.
WtCLPTIRC 'cHEU3W?4 tborc portioor lylw Soutbucoterly of the Southuertc
of 8aid tutalyptur Street.
8?/8&8
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AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
t;,,^*"". 8
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AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
THIS AGREEMENT is made and entered into this - da1
May, 1987, by and between Grove Apartments Investment Co.
("Grove"), H.F.H., Ltd. ("H.F.H."), Harry J. L. Frank, JI
( "F:rank"), the Bernard Citron Trust ( "Citron Trust"), Frf
Bartman, Jr. ("Bartman"), the Marital Trust under the Wi:
William S. Bartman ("Marital Trust"), the Residuary Trusl
the Will of William S. Bartman ("Residuary Trust") (all (
foregoing hereinafter sometimes referred to collectively
"Grove Parties"), Odmark Development Company ("Odmark"),
City of Carlsbad ("Carlsbad") .
I
FACTUAL RECITALS
1.0 This Agreement is entered into with reference .
following facts:
1.1 Grove is and/or previously was the record owne
a portion of certain real property located in the County
San Diego (the "Grove Parcel"). The legal description o
Grove Parcel is attached hereto as Exhibit "I", and inco
herein by this reference.
c *
I
1.2 For purposes of development, the Grove Parcel w;
divided into sub-parcels A, B, C, D, and E, all as reflec.
on t:he Master Plan of Development, approved by Carlsbad 01
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been devl
Sub-parcels D and E have the following acreage, which Gro
previously intended to develop with residential units as
D 16.085 acres 130 units
E 27.675 acres 240 units
1.4 The partners of Grove and HFH, Ltd. are the rec
owners of certain real property located in the County of
Diego ("Parcel "F"). The legal description of Parcel F j
attached hereto as Exhibit "2", and incorporated herein '
this reference.
1.5 Parcel F consists of approximately 8.92 acres.
1.6 On or about October 9, 1964, a Grant of Easemei
Right-of-way from Rildan, Inc., a predecessor-in-interes
plaintiff Grove Apartments Investment Co. ("Grove") to t
City of Carlsbad ("Carlsbad") and the Vista Sanitation
Dis,trict ("VSD"), as tenants in common ("Rildan Easement
-2-
I
.P L 6 . 5
dated July 23, 1964, was recorded in the office of the Cc
Recorder, County of San Diego, in Book 1964 at Page 18491
1.7 On or about October 9, 1964, a Grant of Easemel:
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
VSD, as tenants in common ("Fawco Easement"), dated July
1964, was recorded in the Office of the County Recorder,
County of San Diego, in Book 1964 at Page 184918.
1.8 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 creatinc
Chapter 21.49 of the Carlsbad Municipal Code and Ordinanc
No. 8073 creating Chapter 18.05 of the CMC, and which imy:
a moratorium on the issuance of building permits in Carl:
and a moratorium on the acceptance of applications for ax
granting of discretionary approvals for development projc
in Carlsbad.
l.9 On or about September 12, 1977, Grove Apartmen'
Investment Co. ("Grove"), a partnership, as successor in
interest to Rildan Inc., Fawco, Citron, and Frank, filed
action in the Superior Court entitled "Grove Apartments
Investment Co., a partnership, v. City of Carlsbad, a
-3-
I <
t 6 I
Municipal Corporation, Vista Sanitation District, a Publi
Corporation," being Civil Action No. N 9052 in the Superi
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 obliga
tiom under the Rildan and Fawco Easements and under
Ordinance Nos. 7047 and 7048, as amended and supplemented
1.10 On or about July 31, 1978, pursuant to leave
granted by the Court therefor, Carlsbad filed a cross-cor
for declaratory relief adding HFH, Ltd. ("HFH") and Kamar
Construction Company ("Kamar") as parties to this action.
1.11 The trial in the matter commenced in October 1
and continued thereafter, except where recessed, until
November 20, 1978 when all sides rested, with the present
tion of numerous oral testimony and the introduction of
voluminous exhibits by all parties.
1.12 On November 21, 1978, the Court, after hearins
argument, issued certain tentative rulings, and ordered
further briefing in said action.
1.13 Subsequent to November 21, 1978, the parties 2
othlers, after numerous meetings and other negotiations,
entered into an Agreement for Settlement of Lawsuit and
-4-
L 9
1
Mutual Releases (hereinafter the "Grove Settlement Agreeme
resolving, among other things, all the issues in the actic
1.14 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 foi
certain development rights with regard to the property whj
is the subject matter thereof.
1.15 The Grove Judgment provides, among other thing
that the rights provided therein shall terminate after th
10th anniversary of events more specifically referred to
therein, such that it could be contended that said rights
would cease sometime in late 1989.
1.16 Subsequent to the entry of the Grove Judgment,
certain of the real property which is the subject matter
the Grove Judgment was developed.
1.17 In order to develop and/or cause the devefopmc
of certain remaining portions of the real property which
the subject matter of the Grove Judgment, Grove entered :
an agreement with Odmark Development Company ( "Odmark"),
which, as from time to time amended (the "Odmark Agreemel
provided for the sale to Odmark of Parcels D and E of thc
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property, Parcel E being comprised of sub-parcels E and E
Prime. All of Odmark's right, title, and interest in, to i
under the Grove Odmark Agreement are hereinafter referred
as the "Odmark Rights. "
1.18 Pursuant to the Odmark Agreement, Odmark prepa:
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, excludinc
designated open space and 40% slopes.
1.19 Prior to January 22, 1986, Odmark submitted to
Planning Department of the City of Carlsbad an Environmen.
Initial Study including numerous reports and supplemental
reports evaluating potential environmental impacts of and
corresponding mitigation measures for the proposed condom.
project.
1.20 The Planning Director of the City of Carlsbad,
after determining that the proposed condominium project w'
not cause any significant impacts because potential impac
had been mitigated, issued a Mitigated Negative Declarati
dated January 26, 1986, which, on February 5, 1986, was
recommended for approval by the Planning Commission of th
City of Carlsbad.
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1.21 Odmark applied to the Planning Commission of tl
City of Carlsbad for approval of a two-lot tentative map l
216/unit condominium permit with regard to the project.
1.22 By Planning Commission Resolution No. 2538, thc
Planning Commission of the City of Carlsbad recommended
approval of a two-lot tentative map and 216-unit condomin
permit for the project.
1.23 On March 18, 1986, the City Council of the Cit
Carlsbad held a public hearing to consider the request by
Odmark to approve the tentative map and condominium unit
permit, and further to consider approving the Mitigated
Negative Declaration issued by the Planning Director and
recommended for approval by the Planning Commission.
1.24 A number of members of the public appeared at
hearing to challenge the project, to advocate the acquisi
by the City of Parcels D, E, and F (or portions thereof)
recreational purposes, and/or to question the conclusions
the Planning Director and Planning Commission leading to
issuance of the Mitigated Negative Declaration.
1.25 By Resolution No. 8468, the City Council of th
City of Carlsbad disapproved the Mitigated Negative Decla
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and directed the preparation of an Environmental Impact
Report for said project.
1.26 In connection with said action, the City Counc
voted to cause a review of both the General Plan and Hosl
Grove Master Plan, and to consider the possibility of acc
some or all of Parcels D, E and F.
1.27 Subsequent to the foregoing, Grove and Odmark
placed the City on notice of their position that the fore
going actions of the City Council in disapproving the
Mitigated Negative Declaration, requiring that an Enviroi
mental Impact Report to be prepared concerning said projc
causing the Hosp Grove Master Plan and General Plan to bc
reviewed were unlawful and in violation of their rights,
including their rights to development under the Judgment
entercd In this action.
1.28 Subsequent to the actions of the City Council
described hereinabove, members of the public continued tc
express a desire to attempt to acquire Parcels D, E and 1
some portion thereof, for park and/or recreational purpo
and Grove and Odmark contlnued to assert their rights to
develop sald parcels.
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1.29 Commencing April, 1986, representatives of the
City of Carlsbad, Grove, and Odmark met and otherwise
communicated on numerous occasions in order to resolve the
disputes which existed between them arising out of the
foregoing.
1.30 On or about July, 1986, Grove, H.F.H., the Vis1
Sanitation District, Kamar Construction Company, and the (
of Carlsbad entered into a Stipulation for Entry of Revisc
Judgment in Civil Action No. N 9052, pursuant to which a
Revised Judgment Pursuant to Stipulation (the "Revised Grc
Judgment") has been duly entered therein;
1.31 As of July 10, 1986, Grove, H.F.H., various of
principals of each, and City entered into an Agreement fo
Purchase and Sale of Real Property, pursuant to which, on
November 4, 1926 a ballot measure was submitted to the vo
of the City regarding, among other things, the acquisitio
the Property by the City.
slightly less than 2/3 affirmative vote and was not appro
Such ballot measure received
1.32 Thereafter the City determined to acquire the
Property in lieu of condemnation of the Property, and to
purchase and have assigned to it the Odmark Rights, provi
it obtained the requisite vote of the registered voters
within the City authorizing or approving such acquisitior
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1.33 The City caused a ballot measure ("Acquisitior
Ballot Measure") to be submitted to the voters of the Cit
a special election held on March 3, 1987, which Acquisiti
Ballot Measure was approved, and which authorized the Cit
acquire the Property and the Odmark rights €or cash.
1.34 Odmark and certain of the Grove Parties have f
an action in the San Diego Superior Court, entitled Odmaz
Development Company, et al. v. City of Carlsbad, et al..
which is Civil Action No. N 36215 in said Court (hereinaf
Civil Action No. N 36215).
1.35 As of May - , 1987, Grove, H.F.H., various of
principals of each, Odmark and City entered into an Amenc
and Restated Agreement for Purchase and Sale of Real Pro1
(the "Restated Agreement" ) .
1.36 It is now the desire and intenti,>n of the GroI
Parties and Odmark, on the one part, and the City of Car:
on the other part, to compromise and resolve all of the
disagreements and disputes which exist or may exist betwt
them arising out of the foregoing, above, and also to re!
certain other matters. Pursuant to and in accordance wit1
this desire, and in conslderatlon of the promises and re
contained herein, the parties agree as follows:
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DISMISSAL OF LITIGATION AND RELEASES
2.0 Odmark and those of the Grove Parties who are
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 36215, ea(
party to bear its own costs.
2.1 Except as expressly provided in paragraph 2.6
below, the Grove Parties and Odmark, and each of them, dc
hereby release and absolutely discharge the City of Carl:
of and from any and all claims, demands, damages, debts,
liabilities, accounts, reckonings, obligations, costs,
expenses, liens, actions and causes of action of every k:
and nature whatever, whether now known or unknown, suspec
or unsuspected, which the Grove Parties and/or Odmark no1
have, own, or hold or at any time heretofore ever had, 01
or held against the City of Carlsbad based upon or arisii
out of any matter, cause, fact, thing, act or omission
whatever occurring or existing at any time to and includ
the date hereof in connection with their ownership of ani
rights and/or attempts to develop Parcels D, E, and F (a
of which are hereinafter referred to as and included wit:
the "Released Matters").
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3 1 2.2 Except as expressly provided in paragraph 2.6
below, City of Carlsbad does hereby release and absolute1
discharge the Grove Parties and Odmark, and each of them,
and from any and all claims, demands, damages, debts, liz
bilities, accounts, reckonings, obligations, costs, exper
liens, actions and causes of action of every kind and nat
whatever, whether now known or unknown, suspected or unsL
which the City of Carlsbad now has, owns, or holds or at
time heretofore ever had, owned or held against the Grove
Parties or Odmark based upon or arising out of any matter
cause, fact, thing, act or omission whatever occurring 01
existing at any time to and including the date hereof in
connection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F (all of which are
hereinafter referred to as and included within the "Relea
Matters" ) .
2.3 Except as expressly provided in paragraph 2.6
below, the Grove Parties do hereby release and absolutely
discharge Odmark of and from any and all claims, demands,
damages, debts, liabilities, accounts, reckonings, obliga
tions, costs, expenses, liens, actions and causes of acti
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which the Grove Partie
now have, own, or hold or at any time heretofore ever had
owned or held against Odmark based upon or arising out of
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matter, cause, fact, thing, act or omission whatever OCCL
or existing at any time to and including the date hereof
of which are hereinafter referred to as and included witk
the "Released Matters").
2.4 Except as expressly provided in paragraph 2.6D
below, Odmark does hereby release and absolutely discharc
the Grove Parties of and from any and all claims, demand:
damages, debts, liabilities, accounts, reckonings, obligz
tions, costs, expenses, liens, actions and causes of acti
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which Odmark now has,
owns, or holds or at any time heretofore ever had, owned
held against the Grove Parties based upon or arising out
any matter, cause, fact, thing, act or omission whatever
occurring or existing at any time to and including the dz
hereof (all of which are hereinafter referred to as and
included within the "Released Matters").
2.5 Without in any way limiting the foregoing, and
except as expressly provided in paragraph 2.6D below,
of Carlsbad hereby releases, discharges and indemnifies,
agrees to hold harmless (a) the Grove Parties from each i
all of the obligations of the Grove Parties under the agi
ments identified on Exhibit 3 hereto as such agreements i
to the Property, (b) the parties to that certain Agreemer
the
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regarding payment of a Public Facilities Fee, dated July
1985 and recorded August 26, 1985 under File Number 85-30
and 85-308358, from each and all of the obligations there
under, and (c) the Grove Parties and Odmark from any and
claims, losses, or demands of any kind whatsoever arising
of or connected with the condition of the Property previo
or hereafter existing, and/or the unsuitability of the
Property for any use, except any claims, losses, or damag
arising from any negligent acts by the Grove Parties or
Odmark in connection with the Property.
2.6 The releases contained in this Agreement, and t
descriptions of the Released Matters, do not cover and sh
not be deemed to purport to cover:
A. Any of the rights, duties or obligations o
any person not a party hereto under the Revised Grove 2ud
or
B. Any of the rights, duties, or obligations
any person or party (including any party hereto) under th
Revised Grove Judgment or otherwise concerning the real
property referred to in the Revised Grove Judgment as the
"May Stores Non-Coastal Zone Commercial Parcel" and/or th
"May Stores Coastal Zone Commercial Parcel"; or
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C. Any of the rights of any person or party
(including any party hereto) under the Revised Grove Judc
concerning sewer capacity (including the right to receivc
assign, and/or to transfer the same, and the obligations,
any, to pay for the same), insofar as such rights may be
necessary fully to provide sewer service to the real pro]
referred to in the Revised Grove Judgment as the "May St(
Non-Coastal Zone Commercial Parcel" and/or the "May Storc
Coastal Zone Commercial Parcels" (which the parties presc
believe will involve between and - E.D.U's); or
D. Any of the rights, duties, or obligations
the parties referred to in, arising under, or created by
Restated Agreement which by the terms thereof survive thc
Property Close of Escrow.
2.7 It is the intention of the parties in executinc
this Agreement, that this Agreement shall be effective a;
full and final accord and satisfaction and general mutua
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In furt:
of this intention, each of the parties acknowledges that
is familiar with Section 1542 of the Civil Code of the S
of California, which provides as follows:
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"A general release does not extend to
claims which the creditor does not know or
suspect to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settle-
ment with the debtor."
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of tf
Civil Code of the State of California or any similar pro-
vision of the statutory or non-statutory law of any othei
jurisdiction to the full extent that it may lawfully waiy
all such rights and benefits pertaining to the subject m;
of this Agreement. In connection with such waiver and
relinquishment, each of the parties acknowledges that it
aware that it or its attorneys may hereafter discover cli
or facts in addition to or different from those which it
knows or believes to exist with respect to the subject mi
of this Agreement or the other parties hereto, but that :
its intention hereby fully, finally, and forever to sett
and release all of the Released Matters, known and unknoi
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.8 The parties hereto each warrant and represent
the other that it is the sole and lawful owner of all ri
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title and interest in and to all of the respective Releast
Matters and that it has not heretofore, voluntarily, by
operation of law or otherwise, assigned or transferred or
purported to assign and transfer to any person whomsoever
Released Matter or any part or portion thereof, or any cl:
demand or right against the other. Each of the parties si
indemnify and hold harmless the other from and against an:
claim, demand, damage, debt, liability, act, reckoning,
obligation, cost, expense, lien, action, or cause of actic
(including payment of attorneys' fees and costs actually
incurred whether or not litigation be commenced) based on
in connection with or arising out of any such assignment (
transfer or purported or claimed assignment or transfer.
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of any pe:
who is not a party signatory hereto or specifically named
beneficiary in this paragraph. The provisions of this
Agreement and the releases contained herein shall extend .
and inure to the benefit of, and be binding upon, in addi.
to the parties hereto, just as if they had executed this
Agreement: the respective legal predecessors, successors
assigns of the parties; each and every entity which now i
ever was a parent or subsidiary of Odmark; the respective
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I ’ past and present officers, shareholders, officials, direc
partners, employees, trustees, beneficiaries, and attorne
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herei
affect the settlement of claims which are denied and disr
which are contested, and nothing contained herein shall 1
construed as an admission by any party hereto of any
liability of any kind to any other party. Each party
expressly denies that it is in any way liable or indebtec
any other party.
4.2 This Agreement, the Restated Agreement, and the
Revised Judgment constitute and contain the entire agreer
and understanding concerning the subject matter between 1
parties, set forth all promises and inducements made by i
party to any other party with respect to any of the subjc
matter, and supersede and replace all prior negotiations
proposed agreements or agreements, written or oral. Eacl
the parties acknowledges to each of the otner parties th,
other party nor any agent or attorney of any other party
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made any promise, representation or warranty whatsoever,
express or implied, written or oral, not contained hereir
concerning the subject matter hereof to induce it to exec
this Agreement, and each of the parties acknowledges thal
has not executed this Agreement in reliance on any promi:
representation or warranty not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent lega:
counsel of his own choice throughout all of the negotiat:
which preceded the execution of this Agreement and that :
has executed this Agreement with the consent and on the
advice of such independent legal counsel. Each party fu:
acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry thc
may deem necessary or desirable in connection with the
Subject matter of this instrument prior to the execution
herecf and the delivery and acceptance of the considerat
specified herein.
4.4 This Agreement and any other documents referrel
herein shall in all respects be interpreted, enforced an
governed by ana under the laws of the State of Californi
applicable to instruments, persons and transactlons whlc
have legal contracts and relationshlps solely within the
State of California. Counsel for all parties have read
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approved the language of this Agreement. The language of
this Agreement shall be construed as a whole according to
fair meaning, and not strictly for or against any of the
parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint ventur
and any other entity.
4.6 Whenever in this Agreement the context so requi
the masculine gender shall be deemed to refer to and incl
the feminine and neuter, and the singular to refer to and
include the plural.
4.7 This Agreement may be executed in counterparts
shall become effective when all parties have executed and
acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been delive
to counsel for the parties.
4.8 The titles of the various articles of this Agre
are used for convenience of reference only and are not
intended to and shall not in any way eniarge or diminish
rights or obligations of the parties or affect the meanir
construction of this document.
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IN WITNESS WHEREOF, the parties hereto have set thei
hands and seals as of the day and year first written abov
GROVE APARTMENTS INVESTMENT
a partnership
By :
Its:
H.F.H., LTD.
By :
Its:
HARRY J. L. FRANK, JR.
BERNARD CITRON TRUST
By :
Its:
FRED A. BARTMAN, JR.
MARITAL TRUST UNDER THE WII
WILLIAM S. BARTMAN
By :
Its:
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$ 9
+ 2 .I
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RESIDUARY TRUST UNDER THE F
WILLIAM S. BARTMAN
By:
Its:
ODMARK DEVELOPMENT CO. a corporation
By :
Its:
THE CITY OF CARLSBAD
By :
Its:
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By : Howard J. Rubinroit Attorneys for Grove Apartments Investment Co.; H.F.H., Ltd.; Harry J. L. Frank, Jr.; Bernard Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the Will of William S. Bartman, Residuary Trust under the Will
of William S. Bartman
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
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PETERSON, THELAN & PRICE
By :
John Thelan, Esq.
Attorneys for Odmark
Development Co.
HJR187A
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ASSIGNMENT OF ODMARK RIGHTS
Gz& c G$
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PEW I TTED EXCEPT IONS
(a) that certain Preliminary Title Report assued by First knericr Title Insurance Company, dated as of June 12, 1986 (Ordex
NO. 900394-2); and,
Exceptions numbered 1 through 11 and 1s a5 discl~sedl in
(b) Exceptions numbered 1 through 9 as disclosed in that.
certain Prelirr,inary Title Report issued by First American Title Insurance Company, dated as of June 12, 1986 (Order
No. 925612-1).
gf%Lt D
%J9-&2
bmaL
P '? *- A ' I
EXHIbXl €
RELEASED ACRELYISTS
1. A Contract for the Creation of a Lien for Payment for PLlblic
Improvements, dated January 2'I, 1981, executed by the city c
Carlsbad and Grove Apartments Investment Company, recorcled January 30, 1981 as File No. 81-030961 of Official Records.
2. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 278 1981, executed by the City of Carlsbad and Grove Apartments Investment Co. 8 recorded February 10, 1981 as File No. 82-041815 Of Official Records.
3. A Contract for the Creation of a Lien for Payment for Public Improvements, dated January 27, 1981, executed by the City
ob Carlsbad and Grove Apartments Investment Co., recorded
February 17, 1981 a5 File no. 81-048012 of Official Records$
EX
l%wd (chCm+ 4LLt.h dLqp4. J
75 'kE
16 t c; b
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EXHIBIT €01
LCSL'b'ED AGPI:E?'XKTS
An Agreement regarding proposed roadways, dated October
1977, upon the terms, covenants and conditions contained
therein.
EXECUTED BY AXD BETLCEN: GROVE APARTICNTS 1hl'ESTKEI;T CC).
WUR COKSTRUCTIOK CO.
RECORDED: ?!arch 20, 1978 as File No. 78-10eS9i of OffJc
Records.
Modification of the 1977 Agreement between a2jacent land
owners, dated October 26, 1977, executed upcc the terns;,
covenants and conditions contained therein, recorded
October 16, 1978 as file No. 78-440517 of Official Recor
A Second Kodification to 1977 Agreement between adjacent
owners, 8ated November 3, 1982, executed upon the terms,
covenants and conditions contained therein, recorded
November 24, 1982 as File No. 82-363510 of Official Reco:
my E I
%* mu C+$ RA,tk,
dehLpl-C. )
k '? 5 A '
PLSTIRC B*?.!!I, LtD., 8 lialttd prrtnerrhlp, 88 to a8 UDdiVfBd ODPthiPd (l/IIJI inl
CLC1L.E CITRON URRUR, 80 Truetee Of the ttwt ertrbPtchcd oodar tk 1 w CITRON, decea8ed, 88 to 8n UbdiVidd one31xtb (1/6) intereat; 111 L. ?BARK, JI., a urrird ma a@ hjr oole and reparate property,, 88
rrdirfded OOP8iXkb (1/6) interert; nroI A. bUW, 511, 8 married IYO
OOXC 8bd $eprrte property, 88 to 8n arrdiatdgd @aerlrth (1/6) $aterc!rt; 1
8I trurteer under the haft81h hurt ertrblfrhed wader the Vi11 of rylU WtnrUO, dece.aed, 80 to an undivided one-tuelftb (ln2) interart; f;
88 Tm8t.e. undtr the Irrldurl hrt ertrbltrbed under the Yd1l of IUIU
Urn, Ieetrmd, aa to an undivided onctnlftb (1/12) interest
WW, no, ROBPU Bo Mltl)(AR, taOwAs F'UD OAlllWp and yILLu)o $e MRIW
URW, JI., ROW B. MRW, f%o)(As ?RED BUM 8DU UILLIAM $e MRW
6hkb- F 4 JCQ& &LUm.
1
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COLLINS RELEASE
5iL4M t
&a A Jo-p”l?le/ll
I
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AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
THIS AGREEMENT is made and entered into this - day
May, 1987, by and between Grove Apartments Investment Co.
("Grove"), H.F.H. r Ltd. ("H.F.H."), Harry J. L. Frank, Jr
("Frank") , the Bernard Citron Trust ("Citron Trust") r Fre
Bartman, Jr. ("Bartman"), the Marital Trust under the Wil
William S. Bartman ("Marital Trust"), the Residuary Trust
Under the Will of William S. Bartman ("Residuary Trust.")
of the foregoing hereinafter sometimes referred to col.lec
as the "Grove Parties") I Collins Development Corporat.i,on
("Collins"), and the City of Carlsbad ("Carlsbad").
I
FACTUAL RECITALS
1.0 This Agreement is entered into with reference t
the following facts:
1.1 Grove is and/or previously was the record owner
a portion of certain real property locate6 in the County
San Diego (the "Grove Parcel").
I I
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1.2 For purposes of development, the Grove Parcel WE
divided into sub-parcels A, B, C, D, and E, all as reflect
on the Master Plan of Development, approved by Carlsbad or
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been devc
loped. Sub-parcels D and E have the following acreage, wl
Grove previously intended to develop with residential uni
as follows:
D 16.085 acres 130 units;
E 27.675 acres 240 units;
1.4 The partners of Grove and HFH, Ltd. are the: rec
owners of certain real property located in the County of
Diego ( "Parcel F") .
1.5 In order to develop and/or cause the developmer
Parcels D, E, and F, Grove entered into an agreement witk
Odmark Development Company ( "Odmark" ) , which, as from tin
time amended (the "Odmark Agreement"), provided for 'the E
to Odmark of Parcels D and E, Parcel E being comprised of
sub-parcels E and E Prime. All of Odmark's right, title,
interest in, to and under the Odmark Agreement are hlerei!
referred to as the "Odmark Rights."
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1.6 Odmark has assigned certain of the Odmark Right
Collins, and Collins has or claims to have certain rights
claims against the Grove Parties and Carlsbad in connecti
with the Property, the Odmark Agreement, and/or the Odmar
Rights, all of which rights or claims are herein-
after referred to as the "Collins Rights".
1.7 As of July 10, 1986, Grove, H.F.H., various of
principals of each, and City entered into an Agreement fo
Purchase and Sale of Real Property, pursuant to which, on
November 4, 1986 a ballot measure was submitted to th.e vo
of Carlsbad regarding, among other things, the acquisitio
the Property by the City.
slightly less than the 2/3 affirmative vote required and
not approved.
Such ballot measure received
1.8 Thereafter Carlsbad determined to acquire th
Property in lieu and/or under threat of condemnation, and
purchase and have assigned to it the Odmark Rights (inclv
the Collins rights), provided it obtained the requisite v
of the registered voters within Carlsbad authorizing or
approving such acquisition.
1.9 Carlsbad caused a ballot measure ("Acquisi't:ion
Ballot Measure") to be submitted to the voters of the Cit
a special election held on March 3, 1987, which Acquisitj
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Ballot Measure was approved,
acquire the Property and the Odmark Rights for cash.
and which authorized Carl.sbac
1.10 Odmark, Collins and certain of the Grove Pis:rti<
have filed an action in the San Diego Superior Court, cent:
Odmark Development Company, et al. v. City of Carlsbad, e'
which is Civil Action No. N 36215 in said Court (herei:n-
after Civil Action No. 36215).
1.11 As of May -, 1987, Grove, H.F.H., various of 1
principals of each, Odmark, and Carlsbad entered into an
Amended and Restated Agreement for Purchase and Sale of RI
Property (the "Restated Agreement").
1.12 It is now the desire and intention of the G,rovc
Parties, Collins, and Carlsbad to compromise and resolve i
of the disagreements and disputes which exist or may exis.
between them arising out of the foregoing, including t,hos(
which caused the filing of Civil Action No. N 36215, and
also to resolve certain other matters. Pursuant to arid in
accordance with this desire, and in consideration of the
promises and releases contained herein,
follows :
the parties agree
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DISMISSAL OF LITIGATION AND RELEASES
2.0 Collins and those of the Grove Parties who are
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 36215, ea1
party to bear its own costs.
2.1 Collins does hereby release and absolutely dis
the Carlsbad and the Grove Parties, and each and all. of
of and from any and all claims, demands, damages, debts,
liabilities, accounts, reckonings , obligations, costs ,
expenses, liens, actions and causes of action of every k
and nature whatever, whether now known or unknown, 5juspe
or unsuspected, which Collins now has, owns, or hold:; 01
any time heretofore ever had, owned or held against Car!
and/or the Grove Parties based upon or arising out of ar
matter, cause, fact, thing, act or omission whatever occ
or existing at any time to and including the date h,. (=reo1
connection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F including, but
limited to, the Odmark Rights and the Collins Rights (a
which are hereinafter referred to as and included withi
"Released Matters").
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2.2 Carlsbad and the Grove Parties, and each and a1
them, do hereby release and absolutely discharge Coll.i.ns
and from any and all claims, demands, damages, debts, lia
lities, accounts, reckonings, obligations, costs, expense
liens, actions and causes of action of every kind and nat
whatever, whether now known or unknown, suspected or unsu
pected, which the Carlsbad and/or the Grove Parties now k:
own, or hold, or at any time heretofore ever had, owned c
held against Collins based upon or arising out of any mat
cause, fact, thing, act or omission whatever occurring 01
existing at any time to and including the date hereof in
connection with the ownership of and/or rights and/or
attempts to develop Parcels D, E, and F, including, Ixdt I
limited to, the Odmark Rights and the Collins Rights (all
which are hereinafter referred to as and included witlhin
"Released Matters").
2.4 It is the intention of the parties in executinc
this Agreement, that this Agreement shall be effecti,ve a!
full and final accord and satisfaction and general mutua.
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In furt!
ance of this intention, each of the parties acknowledges
it is familiar with Section 1542 of the Civil Code of th'
State of California, which provides as follows:
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I
"A general release does not extend to cla:
which the creditor does not know or suspect to
exist in his favor at the time of executin'g thc
release, which if known by him must have mater:
affected his settlement with the debtor."
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of t:
Civil Code of the State of California or any similar pro'
sion of the statutory or non-statutory law of any oth.er
jurisdiction to the full extent that it may lawfully wai
all such rights and benefits pertaining to the subject m
of this Agreement. In connection with such waiver a.nd
relinquishment, each of the parties acknowledges tha.t. it
aware that it or its attorneys may hereafter discover cl
or facts in addition to or different from those which it
knows or believes to exist with respect to the subjec:t m
of this Agreement or the other parties hereto, but that
its intention hereby fully, finally, and forever to sett
and release all of the Released Matters, known and unknc
suspected or unsuspected, which now exist, may exist:,, ox
heretofore have existed, between them.
2.5 The parties hereto each warrant and represent
the other that it is the sole and lawful owner of a:l:L rj
title and interest in and to all of the respective 1321ei
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(r
Matters and that it has not heretofore, voluntarily, by
operation of law or otherwise, assigned or transferred or
purported to assign and transfer to any person whomsoever
Released Matter or any part or portion thereof, or anby cl
demand or right against the other. Each of the parties s
indemnify and hold harmless the other from and against: an
claim, demand, damage, debt, liability, act, reckoning, c
gation, cost, expense, lien, action, or cause of action
(including payment of attorneys' fees and costs actua1.ly
incurred whether or not litigation be commenced) basad on
in connection with or arising out of any such assignment
transfer or purported or claimed assignment or transfer.
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of an:y PC
who is not a party signatory hereto or specifically immec
beneficiary in this paragraph.
Agreement and the releases contained herein shall ex,tlend
and inure to the benefit of, and be binding upon, in addi
to the parties hereto, just as if they had executed Chis
Agreement: the respective legal predecessors, successor:
assigns of the parties; each and every entity which now i
ever was a parent or subsidiary of Collins; the respecti7
The provisions of th.i.s
-8-
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past and present officers, shareholders, officials, direc'
partners, employees, trustees, beneficiaries, and attorne'
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herei
affect the settlement of claims which are denied and disp,
which are contested, and nothing contained herein shall b
construed as an admission by any party hereto of any liab
of any kind to any other party. Each party expressly den
that it is in any way liable or indebted to any other par
4.2 This Agreement constitutes and contains the ent
agreement and understanding concerning the subject matter
between the parties, set forth all promises and inducemen
made by any party to any other party with respect to a.ny
the subject matter, and supersede and replace a11 prior
negotiations, proposed agreements or agreements, writt.en
oral. Each of the parties acknowledges to each of th.e ot
parties that no other party nor any agent or attorney of
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I < z
other party has made any promise, representation or wa,rra
whatsoever, express or implied, written or oral, not cont
herein concerning the subject matter hereof to induce
execute this Agreement, and each of the parties ackncwled
that it has not executed this Agreement in reliance c~rt an
promise, representation or warranty not contained hexein.
it
4.3 Each party acknowledges to each of the other:
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiati
which preceded the execution of this Agreement and that i
has executed this Agreement with the consent and on the
advice of such independent legal counsel.
acknowledges that it and its counsel have had adequa'te
opportunity to make whatever investigation or inquiry the
may deem necessary or desirable in connection with tlne
subject matter of this instrument prior to the execution
hereof and the delivery and acceptance of the considlerat:
specified herein.
Each party fur
4.4 This Agreement and any other documents referrec
herein shall in all respects be interpreted, enforced anc
governed by and under the laws of the State of Californii
applicable to instruments, persons and transactions whicl
have legal contracts and relatlonships solely within. the
State of California. Counsel for all parties have rebad ,
-10-
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t
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approved the language of this Agreement. The languaqe: of
this Agreement shall be construed as a whole according tc
fair meaning, and not strictly for or against any of the
parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint ventui
and any other entity.
4.6 Whenever in this Agreement the context so requ:
the masculine gender shall be deemed to refer to and inc:
the feminine and neuter, and the singular to refer to an(
include the plural.
4.7 This Agreement may be executed in counterparts
shall become effective when all parties have executed ani
acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been deliv
to counsel for the parties.
4.8 The titles of the various articles of this
Agreement are used for convenience of reference only and
not intended to and shall not in any way enlarge or ciimi
-11-
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the rights or obligations of the parties or affect the
meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set thei
hands and seals as of the day and year first written abov
GROVE APARTMENTS INVES'I'IYENT
a partnership
-- By :
Its: --
H.F.H., LTD.
-- By :
Its: --
-- HARRY J. L. FRANK, JR.
BERNARD CITRON TRUST
-- By :
Its: --
-- FRED A. BARTMAN, JR.
MARITAL TRUST UNDER THE WI!
WILLIAM S. BARTMAN
By : --
-- Its:
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RESIDUARY TRUST UNDER THE W
OF WILLIAM S. BARTMAN
-- By :
Its: --
COLLINS DEVELOPMENT CORE'ORA
a corporation
-- By :
Its: --
THE CITY OF CARLSBAD
-- By :
Its: --
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APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By :
Howard J. Rubinroit
Attorneys for Grove Apartments
Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman,
Jr. ; Marital Trust under the
Will of William S. Bartman,
Residuary Trust under the Will
of William S. Bartman
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
By : Attorneys for Collins Development Corporation
HJR187C
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First ce c
41 1 IW STRCET * P.Q. BOX 808 0 $AN DIEQO, CA 821 12-9531 e (818) 238-1776
\
FACSXMILE COVER LETTER
?LEASE DELIVER THE FOLLOWf'NG PAGES TO:
-I '* . > KCik newec
WE ARE TRANSMITTING A TOTAL OF /(3 PAGES INCLUBXNG THXS COVER
9 nwnrpa
f
DATE: Ob&
TIME; g.2a
CLIENTIMATTER: &so , Gmge
T.eP 'YOU DO NOT RECEXVE ALL THE PAGES, FLEASE CALL BACq AS SOON a$ ~O,,$SIBL,E.
FOB YPJUR FUTURE REFERENCEI OUR TELEPHONE NUMBER IS:
XEROX zoo (AUTOMATIC) (619) 231-4466
7 @ --. . j
TdCc d~, 900394-2
.PCfOW No, 94453% W
.6Pf'l No.
WEN RECORDEO MAIL To:
:iky of Carlsbad 1200 Elm Avenue Wlabad, CA 92008-1989 4th: Vhcent P. Biondo, E%+
e --
pk B6CUMENTARY TRANSFER PAX $,,, ,,,... n ............. .ill.lll..t.ll,v+ ,..,., Cornputrd an the cOIl8fdW8ti6fI or VPh of property I:anrryed
,,,,,, Computed en thb conoidsrrtion or value IC8 tldnd or rnsumbfi
MAIL TAX STATEMENTS
?ONE--
rbmainlng at tlmr el MI@,
Sipnprure of Elw\rtmt or Agrnt datrrtnlnlnp tax - F lrrn t4ri-h . ---
--
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which Is hereby acknowledged, a,F,H, I ~m., a caifc)m-& d PartmrsMp and FIED A. EiAFfWW, 5R., a mrrid nws as his SO~R and separate p~xpert
J.L, FRANK, JR,, a marrid man a6 his sole and separate property and CTEILF: C, (C:l:TE# AN, TWSm of the BEKNARD CITKN TRUST established under the Will sf krnard Citrm, 1
Rereby QRANTM to
;iIm OF WSW, a Municipal capration
.it," real property in the City of Carlabad
Rxtions of Lats 8 though 25 and 33 b Hosg Eucalyptus Forest Cwys' Tract NO. 1, City of Carlsbad, County of San Diego, State a€ California, acmrdhg to Map thereof N filed in the Office of th County Recorder of Sa Diego Cgmty, Yune 8, 1908, and as m particularly described on t.he cunplete legal description attached hereto and made a PC
XIS CONVEvAfiJCE IS MDE SuBJE@r To ALL MRITERS OF RECURD.
md FRE;D A, BARXWI JR., TRUSTEE of the WIUM 5, EUXRTWW MW-ITAL WST est&liahd I
Jill of William S. Bwtman, I3ecease-d and FWD A. BARDlW, 3R. I 9RWTEE of the TddIW,XA?4 i! WIDW' WST establish& under tk~ Nil1 o€ William S. Bartman, kceased
, State of California, descri County of san Diego
Oatad---. May - 26 -...L,-.--- 1987 , . , -6 SEz $Iwm PAGE A- m31Q AI
A PART mREm* -- STATE OF CALlFORNlA CbUNW OF-+.-
on-,, - - __- - - -- -
. -- sonally eppaerad. _._-
A -_-
personally knowp to roved to ne on lhvr baeie 01 8atideeto,iy
w\thir! iil$trumas +in~qtis&csi t3 me that k~/shefibey grtacuiad
tthh an*a riav ?Vbi"C. FiRf.TI.1 ram0
a ,, ... .
*NATURE PAGE
,I * v ic,
RED A. BARTMAN, JR. %--TJ--j2?7&*#**--*-- RRRY .&/. FRANK, JR.
P
$iG;Y/.&& *--*-----*"--- --.wmd--*---- I,,, - -9 8:
6 &*azG -----I--- -
i"'$//
- .PTyI-- e-+-- ~ITRQN) XILE I SARTMAH, Trustee Of THE
SRNARD CXTRON TRUST
&& :::.c J &Zi*&.+b/ '
...- A- I - - .. 3 - 1 - - - - - -* - - -, - - - - - - -/ - - - *
\ED A. BARTMAN, JW., Trustee gf THE
LLLIAM $, BARTMAN MARlTAL TRUST
[ED X, BARTMAN, JR., Trustee
'&LIAM 5, BARTMAN4 RESTOVARY TRUST
f THE
._-.-
.I- . .. , ,-,. ~ .._- _- . --. -,,-,-"'.' -.---'
ss3
.I 1 STATE QF CAL~I:~RNIA LOS ANGELE~
v 26, before mc,
On Ihe undvrsikncd, a Notsry public in ilnd rar skri~ COUW an' ''at'* bert R * G.e.tz perrPnaLy sppcarcd-. Ro
mcrroi>i\i\y know 14 mr.
to wirhi" hc ,,,~ ,,,#tri,;;Lf&;;, gcncrel pdr,ncr(r of thc iirnitcd pnrtnefdhip Ihi't (''at such cxceulcd pirrt1rs7s1'ip thc
1987 i CoUPI'TY OF
13 pro~~cd ," n,e QI, ,hc hnfiis trf r:ltisfuclory cvidcncc+
pxcClIIcd 1h1: 3147
%ptihc..& t .
B.*.S-- N~,,,,~ t'iyltt4i or I'rinwd)
.--.
N61nry public in arj~ ttrr $;kid CLNI~~Y and s';*'C FOR NOTARY SEAf- OR sTAL'p .Zc R
''ATE OF CALIFORNI~ CoUNFYotr. Lm ;
ibS.
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'bar*re me. the url&:s;gned, EI N
44 +32m
----I--_.__ ----------+b- ---------cIc.q-__-
On ' &&Y a,, FJ)
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aei' 'toin, pi!rsorraily appearsd
--------_&---- OfW PmJc in end !OF .-. . .. .. Fm A* -4 ~---?-7-~-~7 ---, m~-~ ?---------
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.-----____--~___________________
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,>I >j.L.21-r.>.L.i . . --e _--. _... .......
ftCV BY:>:~ft~;,: TELEI-TJPIE~, 7010 ; 6- 2-PT 8:22AP1 ; e' ._. TL3f&?w$mA //"iSql2 bCJ
>n V~U,IFM ,belor0 mo, the undar$rgtiwd. a Notary i in and !or
Y---Y--~~-31---*--~-~-~---~---~------~--~------~--~~--~~ I
--~~-~-------~,------~--~---~-----.------~---------~~--------~--~-
L--~---.------~--~~I-~----------~--~~--~---*~~ ~11-
ersonnlly known 10 1n6 (or prc)v@d to tm O~I the basis of satis-
ctorrevldeme) lu he lPepr:rs6ri#)i~hosonanielflisRCddial;h-
xibed io \tie wltthri insirument and achr~owledped fo ma ttlai
my uxectiieci the mme.
' TNI.SS my hnrirl $111 Hic! seal.
~nahr~ /fJ-?!?(
d d $!nie. PflrStXl;llly ilppOdr& w cL. FRANK, ~.-l---lp----~--~~~--a-- ..........
...
.... ._ ...-.- --.___
...... r ._ ...........
(This nrea far official nptarlal 8epl) g, Jc#$$e-&-l sg.7
STATE OF CALI ORNiA 169. COUN OF .& 6.g-
On %A. (W, fTn
said S\a\e, p$dl;l~~y appeared. . cE]Cru cm m,, TRUSTEE
t I
&&foro nt% the undersiflneu, a Notary Public in and for
I--* ..... .- .. .- I ,- -. --~-----4--l--~--l-----~--~--------~--~--~--~ ,y-l.--
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..... - .... ~ _-,__._. ..
...- .,. ..-_... __
... ...-. . ..___-.._. .
3ersfillalIY kfrown Io me (Or Proved 10 ink! 011 !he begis bf satis.
nctory WICWWOI \O t>r? the persang) w~iofi~: rlillllc~g is/xcsub.
chLX?d 10 tho wllhiii irlstrllrrletll nnb ;ichildc<j& to l,,c! lllnt
PE/sllc?/)(PMr:xri!l.I(otl t!ltl SGIme,
VITNESS tt>y hikiut y& r~ # Q ticia1
fJllal urEf': I, (This rea tor diicInI notarial seal) SCH/z&8C-C
COUNTY OF. &&i~ e N + c+ ccq ,l
On *?X, ,I 7~7 ,befar0 ma. the undbraigned. a Notary Publtc in and for
.-----ab--- Said State, porsntMlfy ::ippertred Fm A* m, JR, I muSm8 ....- - ,_._ -, ....
-n--=---~--L-----~l-~--IC-1Y---,~--~-~-----------------~---.---~*-,
--~--~---a--~--~o~--~------c--~---~~-~--~-.-~~--~~-~~~-
----~.--~--3y--l---------------------~--,---,--.-~------~--~---,~---
..... ~ ._.-_._._ ...
. " .__. -,- -...,.
...... ,_.. ... .._.-. .
3arsonally hbwtj la nio !or roved to nic on tiw bmlb 01 satis-
nclbry evident81 ttr bv I~O pE:rsm(#whoscr nan)e(&s{&sub.
XrihQti to Ihe Withi:\ inslrcrrnent find acilnowicdyed 10 me that
1c/- &xeclll(ld lhB 9RI7lB.
YITtVESS my ha!Jy&
B. SCWREIBER N3XW Pil3LLC . CALiFORNiA
FZiNCfPAL OiFJCC It4 LUS AI:SELES COUNTY
Kg Con;r,i%ian Erp. Mw, 17, 1989
[Thla wee for offlciai notarial am!) ilgnaturs , (l %, LC= Pb/&</ 085-
pi?¶, STATE OF CALII'OIq IA 1 0
hotore nle, thy ul;&rsigned, a Notary Publie in and for
$--YY411I21--
&ut eW9-m
tinid --~~-~ state, pi rdon~~~~y ;\tWafed 1 - L__l_______r_______*-------m~~-----~~=u---mM-~-- ..._...- ---...
*y y--------~--------~---~---~~=um~-~--6=m-- ,I _,___--..--.. -~-~ -- , __-__-_~______-_-~-------~~~~~~----~--~~---- ____..__ __i.'..-r I
. . I ^-I- "' .- CO"NlVfi7 00 ?..Gt f 7& ~m A* -r m,t TRUSTEE ..
._
pei30ns~,y known 10 me (or proved to 11~ PI ~h* bas's 0' "ti"
rnctolyevltjencel lotleihe personmwl1oso t~l11~~i~~~~~'- , Sc,.ib(!d IQ !ha w;tl,jn Iils!iumefit and ~~ckl~~wlod~~' '0 ftlt? "lnt
\,c,mexaieub?d the BamB.
WITNESS my hiirtj wT/x,:I
(This a<pgj for QffiClE! nfi1&fla! Boe'i
Slgnsturg, . ' d . .- .- ....... ,= g,JC&5e cJ/ i.7 c-
*b (II+
' UCAL DESCRIPTLW ORDER Nb. 900394-2
The land referred tq hsfcfn iR $ituated in chesdtste of California, CQUnLy sf: San bllegb, and ie doocribad dcr fdfQws:
QARCEL l<
Porriana of Lote 8, 3, 10, 11, 12, 13, 14, 15 4rd 16 in Hosp Eucalyptus Forest Comppdy'~ Tract Noa 1, in the City of Carlsbad, County of Ssn Diego, Stst~e of
California, according to Map thereof No. 1136, filed in the Office of the C:oenty
Recorder of Ban Diego County, June 8, 1908, deacmibd aa follower:
Coremeacing at the Southeast corwt af said Xt~ct, thence dal0a.g the East line of
said Tract Hotth Oba$Q'20" Eaat, 2263.66 feet, said psiat &$rag South 00'5bI20"
West, 414.74 feet frm the Weer: Quarter cormf of Section 32, Township 11 South,
hinge 4 West, $an Ber'natdino Ba~e and Meridian; thance Norrh 89*118'10" kre~t:,
4$,07 feat to the True hint of Beginning; eaid pcjine being bn B non-tiingent:
curve Coilcave Southaosterly and having a radiua o€ 310,UO feet, a rradisl line ea
eaid point bare North 4381,4'53ii Wmt; thenee SQU~~WCS~~S!~~ ala eaid c:urve
305.23 feet, thence North lO"19'07'' Weat, 374.05 feet; thenee Hoath 79"410'53'
Eaet, 272.00 feet; thence North 02a01'30'' Weet, 699*18 deet to a paint on rt non-
tangent curve CORC~LY% Sauthweeterly end having a rwdiusr of 761.50 feet, a irrrdial
Itnet to said point bare North lOb0B'5l'' Eaat, thence Southeasterly along; uaic
curve through w centrd angle of 03'23'09" an arc dlatsnee of 45.00 feet, tt'lenct
tangent ECJ said curve South 76*30'oiOit hat, 350.95 feet, thence North i ,QO toot;;
tkncc South 7bb30'00" East, 339.00 feet; thence South 350.00 feet; tiwenee Soutl
06"51'59" East 261.11 feet eo the True Point of Beginning,
Excapriizg therefrom that portisn described BB fOi1OW8:
Commencing at the Northeasterly corner of Carlabad Tract No. 77-2, Unit No, 2
accord$% to Map tharcsf No. 9813 filed in the Office of the County Recorder ol
eaXd Sara Diego County, September 26, 1980; thence North l"0r'lO'' Emt, along thr
EaBtetly line 0% wid Hmp Eucalyptus ores st Company'e Tract No, lr 843*48 Eaet;
thence North 89'11'20'' Went, 46.07 feet to the True Point of Beginning and thl
beginning 5f B aon-tangant curve, concave Soutkaoeerly sIBd having a r6diiu o
310.00 feet; thence Southerly dong said curve through %i cantrsl angle Q
41"32'50" an arc diatance of 224,79 feet; thenec leavdn$ @aid curveo Hart' 89*11'ZO" Weat, 30,085 feet: to the beginning of a nowtangent curve, conc~v
Southeasttrly and having B rediue of 340.00 feet; thence Ncrtherly along sal.
curve through ei central angle of 45"35'15" and arc dietante af %70152 feet
tknce leaving said curve South 6'45'09'' Eaet, 36.41 Been: t6 the True Point o
Beg inn$ ng II
L~u+*.& 4...*u c~Irt WA~U VT* rJ'fd"ReBc JJ~ IIL n;eeri cnence bcutfi 5 Y 'Z3'VB" Weat
I
t
i, LB
0 e I.
0'
LEG& DESCRIPTION
ORDER 1J0, 900394-2
PARCEL 2
Portions of Lpta 8, 9, 10, 16, 17, 18, 23# 24, 25, C~enon Street am3 sf
Eucrlyptusl Street in Hasp Eucalyptus Forest CPrnpany' B Tract No. 1 I in the i:i&y
Of Carlsbad, COllgltY Of Sen DiQgO, State Ob California, hlL!Cording to Map hh~!r:eof Me. 1136, filed in the Office of the County Recorder of Sari Diego County, ;\ME
8, 1908 deecribed 88 follows:
Commencing at the most Southwesterly curner of Lor 25 in said tract; rhlance
dong the Southwesteriy line of seid Lat 25 North 23'27'45" West, 195.QQ ftiet;
thence North bS"30'20" EP8tB 380,4l feat to the Ttue Point, of Beginning; chr3ncr
North 18"09'47" Went, 40.89 feat to the beginning af a tangent CLITVB COIICBV~
Northcustarly and having a radius of 1042.00 feet; thence Northwesterly d~~oq
said cofve thnr a central angle of 14'35'28'' an arc dietansc of 265,33 !:{ret;
thence tdngarnt to said curve Narth 03"34'35" Mast 94 ,02 feet to the begiiinlng OL
a tangent curve concave Southwesterly and having B radiua of 458,OO feet;, tlwnce
of 178,34 feet; thence Pangent to Bald curve North 25"53'13" Mest 189,20 feet kc
the teeginning of a tartgent curve concave Northeasterly and having a r6idI.ue 01
1942.00 ftec; chance Nerthweaterly along said curve thm a central t3,rqI.e~ oj
10*17'57" an arc distance of 187.30 feet; thence tangent to said eurve or el
15'35'16" West, 108161 fset to the beginning st a tangant curve CQ~C~V~
Southweaterly and Raving a radius of 20a00 feet; thence Northweoterly along gait
curve thru B c~~tsa], angle of 88"1#'48" an arc distance of 30,82 feet co a p~fn
NortbW68ketly d.oK# said Curve thrU & Centled tiFglc Of 22"18'38" mfi BTC <~~Bk$nC6
@f CUSP With & CUWC CQRCOVB HOrthWe!$terly 6d having & radiu5 of 8318.:rO, ,
rsdial, line to said point of cwp betare South 13'52'04'' Esat; thenci
Northeasterly dong ths lase mentioned curve thru 8 rentrai rarglc of 0L443'12'
an arc distance of 25.17 feet; thence tangent to mid curve North 74'24'44" €as
160,OO feet. to the hginnf~tg of a tangent cuma conczive k4orthwssrerl.y and haviq
a radiure of 838.50 feet; thence Northasterly dong said curve thru 8 centra angle of 13'24'44'' en arc dfatanca of 196.28 feet;; thence tangent to said eurv,
North 61'00'00" h8t, 174.31 feat to the beghniw of B tingent cutye CQ~CBVI
Soucheaeeerly and having & radium of 761,50 Pttt, thence Eeaterly alitzqs faaic
curve Lhru I central. angle OP f9*06'51" an BTC distance of 518,83 feet; :h,enct
South OO*Q1'31)'~ Easrt 699*16 feet; thenee South 79*4OsS3" Nest, 272 .flC feet
thence South 10'19'87" -East ?1?4,05 feet; thiZPlCe! South 48'30'20'' West, 541 194
feet. tQ the True Point Of Beginning,
Exceptit;g therefrom an 84 f~ot wide strip 0% lad, 42,OO feet. each side of th
f o?,l~wing deecribcd centerline:
Commencing at a point 00 the Wsetesly line of said Lot 25 dtatanr thereon No~t
23'27'45" West, 195.00 feet from the Southweer corner thereof; thence I.eslvin
said Veeterly line North 68'37'14" East (r%cor:d North 68'30'28'' East per deed
402,52 feet to khe True Poiat of Begisniqg; th8Rcc North l8'03'Of'' Weet, ZI8.5
feet; to the ixtginrtirrg of 4 tangeat curve, ~O~CPVO Eaeterly end hariir3 a wdiu
of lOOU.OD feet; tkncc fisc& said curye 'through ~f central awls of 14"35'2?1" B
arc dirtanct of 254.64 feet; thence tangent to aaid Curve Netth 3'27'44'' Ue5E
109.90 feet to the beginning ~f B tangent curve, concave Westerly 3rd htnvtng
rediua of 800,OO feet, thence dung said curve through I ceearrd .asgla o
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LEGlrL DESCRIPTlON
ORDER NO. 4100394-2
25'22'30'' an arc dlatance of 354-30 fcer; thence tangent to eafd curve North
28*40' 14'' Weat, 106 .b9 feet t~ the beginning of a Earngent eur~e concave as terly
and having a radiue of 800.00 Lees; thence &.OX aaid curve through B central
angle of 13'21'49'' an arc dietance ~f 18b.59 feet; thence North 13"28'25" WC'BE,
30.00 feet more or leas to the Southesly right: of way line of Marson Road, The
rJidalines of said 84 foot wide street 8Rdl germinate with ZO.00 foot rad,iue
rtturns at said Southerly right of way line of Marron Woad,
PARCEL 3
Portions of 'Lot8 22, 23, 24, 25 and of Eucalyptus Street In Hosp Euca1,yptue
Forest Coolparry's Tract: Ne. 1, in the City of Carlsbad, County of $an Iliepo,
State of Cdifbrnia, 8~~0rdiM to Map thereof No, 1136, filed in the Office of
rhc County Recarder of Saa Diago CQU~Y, Juae 8, 1908, described WB f0110w~:
Camencb~ at. the moat Southweattrly corner of Lot 25 in said tract; I:trr:nce
ml.~tig the S~~thWe6t~~ly line of Mid Lot 25 North 23'27'45'' Weet 195,bO Ilriet;
thence North 88'30' 20" Ea8 t 360 -4 1 feet; thence North 18"Og ' 57" Wee t 40,851 feet
to the beginaiag of a ixngcnt curve concave Nortkaeterly end having er r~dkucl of
91*38'58" an arc distance of 30.00 feet to the Ttua Podnc of Beginning; r:henc~
continuing aloag eaid curve through, a central angle of 12"56'24t' an arc cl113i:rimcc of 235.33 fact; thence: tangent to eaid curve North 03'34'35" West 94,02 firet: tc
the baginning of u tangent curve co~cave Souehweaterly and having 8 radiu~n at
458,OO feet; thence Northwesterly along said wrva through a central Rqle of
22*18'38'' ad ate distance of 178.34 feet; thence tangent to %aid Curve Nortt
25'53'13'' West 189.20 fees to the beginning of a ~angenmt curve ~(~1141~~0
Northeasterly 5nd having a radius of 1042,OO feet; thence Norrhwearetly dorq
said Curve through a central angle of 1O817'5?" wn arc distance of 187 ,30 feet;
thence tangent to said curve North b5*f5'16'f West 108.41 feet eo the bsrginniry
of a rengent curve concave Southwesterly ad having a radiue of 20.0D .feet;
thence Northrtestefily al~plg said curve through a cen&ral angle of 88"16'4&"' ai
arc distance a€ 30.82 feet to a point of rcavdltee curve ~5n~avc I4ortherJ.y ant
hsving 8 rsdiua of 838,50 feet; thence WeEItarlgr aloq said revel.ere curve th!raUg\
a central EII.~~ of 32'08~52" an arc dietsnce of 470Af feet; thence Souti
07'34'20" Welat 213.72 feet; thence South 64'59'00" East 268,29 feel;; these1
SoutR'25*53'13" Eaet 590.00 feet; thence South 6b"45'50" Eeer 330,26 feet: to tht
True Point of Beginningd
Gxccptlty therefrom on 04 foot wide strip of land, 42,00 feet each eide of thr
fd1oUiIIg daactibtd centerline:
Cmmeficing at: a point on the Weorerly line of ssfd Lot 25 dieEsnt thereon Nstt;
23"27'45" WerPt, 195 do feet from the Southweet Corner thereof; thence leaviq
said U~i~terl:f line brth 68'37' 10" East (record North 68"30'28" East per deed
402+52 feet: to the True Paint of Beginning; theace North !8*03'0f" Weel:, 38S feet trs the beginning gf 61 taFgcnr curve, concave Easterly ad having JB radiu
of 1QOO,bO feet; thence dong said curve through 8 central angle of 14*3!5'23" a
atc dietrnnce of 254,64 feet; tRenc0 targene to said curve North a'27'44'' Weat
109.90 feet to the beginniQ of a tangent curve, tancave We8terl.y &rd ils~ring
1042.00 feet; thence NoPthwcstcrly dong Eaid curve through p9 central e~;lei of
4
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LEG& DESCRIPTION
ORDER NO. 930394-2
rediue Q€ 800.00 feat, thence do% asid curve through tl, central airglit of 25*22'3Q" &a arc dL8cance of 354.30 feet; thema tangent to said CUSY~, No'rth 2tS05Q' 14" Uee t, 1Qb,19 fact to the bgiinning of a tanggene cillt"va CO~CBV~ Ese terly
and haviq a radius Of 8#0*00 feet; theme dciq eaid curve thrQugh 8, ct!n,e.ral
awl4 of 13*21'49" ~n BPC distance of 186.59 feet; thence N~rth 15"28'25" t;fgiBt,
30.0D fect m6re Qr ]Lee8 to the SoutherPy right of way line Of Marron Road, The
eidelinee of said 84 foot wide: street ahall terninate with 20.00 foot ~:adtiut returna cat said Southerly right of way line of Masron Read,
ja/t:d
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LEGAL DESCRLPTIOS
ORDER NO. 92,5612-2
The lend referred to herein ie aituatcd in the State of California, County sf
$an Diego, ar?d is Beecribcd as follows:
PARCEL I:
Those portike of Lata 19, 20, 21, and 33 and of Eucalyptus Street in HQSP
Biega, State of CalLfarn%a, aCCDrdiRg to Map thereof No. 1136, filed in the
Offkc of the County Rccordcr of San Diego County June 8, 1908, described 88
follawr:
Commencing at: the Sautheast Corner of said Lot 20; thence along the Eastexly
lint3 thereof, Korth (?6"58'00" East 278*08 feet to the TRUE POINT OF BEGZWING; ehence South 70'28'24" West SO5.81 feet; thence North 89828q~oO" West 213.74 feet
to a point on B nan-tangent 462,52 foot radius curve eoncave Northweaterly, ti
radial lint of which beare South 49*22'30" Eaet to said point; thence
Nortkaastetly al~g the arc of said curve through a central angle of 05'24'55",
a diatnnce of 43*72 feet; thence tangent to said curve, North 35"12135" et 449.44 feet to the beginning of a tangent 490,60 foot r&dius curve corlca.ve
Ssuthcastar1y; thence Nartheasterly along the arc of said curves ehrou,gh a
central angle of 37*47'39*, a diitance of 323.22 feet; thence tangent to saSd
curw North 73°00'14" East 111.94 Peet to the beginning of a tangent 20,OO foot
radius curve conc~vc Southwesterly; thence E88terly and Southeasterly alcmi, the
arc of eeid curve, through a central angle of 86'4Q'30", a distance of 3Cl.26
fd~r te the beginning of a rweme 842.00 foot radius curva Cot~ca.ve
Northeaeeerly; thence 8outheaeterly along tho arc of said curve, through a
central rangla of 24'45'QO*, a di8tance of 363 e72 feet; thence South 44'55'4.4"
West 151.50 feet to w point which bear8 North 70"2$'24" EasC from the TRffE, I'Ct1:MT
OF BEGINNING; thence huth 70"28'24" Weet 69.19 feet to the TRUE POKN'E OF
BEGINHXNG
EXCZPTTNG THEREFROM thoge portions lying Northeasterly of the Southwes ter1.y line of aaid Ertcalygtue Street.
PARCEL 2:
Thoat portians of Lot@ 19 and 20 in HOSP EUCALYPTUS FOREST COHFAHY'S TRAL@l: NOS I,, in the City of Carlobad, County of $an Diego, State Of CdLfQrnla, sccol:dj.ng
to Msp thareof No, l,136# filed in the Office of the County Recorder of Sari 13Jbr:g;a
County, June 8, 1908, deercribad ae follows;
EUCALYPTUS FOREST COMPANY'S TRACT' NO, 1, in the City Of Carlabad, County [sf Ssn
RCl,)B'T;xEROx TELECOPIER 7010 ;6-2-87 8:26At"
J..tGAL DESCR.IPTIon
ORDER NO.925612-2
61923i4666.-:l 24070;l:*10
Beginning at the Southeast corner of sdd Lot 20;thence along the Southerly
line of said Lots 20 and 19,Notth 89°29'00"~est 781.61 feet to a point on a
non-tangent 462.52 foot radiu8 C\,1r\fe concave N01'thwesterly,a radial line of
which beats South 29D16'lOR East to said point;thence Northeasterly along the
arc of sdd curve thl'ough a central angle ot 20°06'20"a distance of 162.30
feet;thence South 89'29'00"East 213.74 feet;thenc.e North 70°28'24"East
S05.81 feet to an intersection with the Easterly line of said Lot 20;thence
along said Easterly lina,South 06°58'00"West 278.00 fMt to the Point of
Beginning.
PAJ.CIL 3z
Thoae portione of Lot,19,20,21)and 33 of Eucalyptus Street in HOSP
EUCALYPTUS FOatST COMPANY'S TRACT NO.1)in the City of Ca~lsbad,County of San
Diego,State of California,according to Map thereof No.1136 filed in the
Office of the COUMy Reeotder of San Oiego County June 81 1908,described 88
followlI~
Commencing at the Southeast cornel'of said Lot 20;thence.along the Easterly
lina th"t'Mf;North 06'58'00"East :17S.00 feet to the TRUE POINT OF BEGINNING;
thence South 7002B'24M West 505.81 feet;thence 89°29'00"West 213.74 feet to a
point Ort a non~tan8ent 462.52 foot radius curve COnCave North~esterly)a radial
line of which bears South 49°22'30M Esst to said pOint;thence Northeuterly
alona the arc ot add curve)through $.centt'al angle 05'124'55")a distance of
43.72 feet;thence I:$.ng$nt to said curve,North 35°12'35"East 449.44 feet to
the beginnins of a tangent 490.00 foot t'sdiuA curve concave SOlJtheasterly;
thence Northeast!!i:rly alone the arc of said cut've)through a c:entt'al tingl$of
37'47'39"a distance of 323.22 feet;thenee tangent to said curve)North
73'00'14"East 111.94 feet to the beginning of a tangent 20.00 foot radius curve
concave Southwesterly;thence Easterly and Southeasterly along the arc of said
curvet throush a eentral angle of 86°40'30"a distance of 30.26 feet to the
beginning of a re.verse 842.00 foot radius curve concave NortheuterlYl thence
Southea~terly along the arc of said curve through a central angle of 24°45'00",
a d1stance of 363.72 feet;thence South 44·55'44"West 161.50 feet to a point
which bears North 70'28124"East from the TRUE POINT OF BEGINNING;thence South
70028'24"West 69.19 feet to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM those portions lying Southwesterly of the Southwesterly line
ol A~1d !uc:alyptusS~reet.
mr/adm
y
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AMENDED AND RESTATED
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT is made and entered into as of this&
of May, 1987 by and among the parties identified as Sel.lei
on the signature page hereof (herein collectively "Sell-er'
The Odmark Development Company, a California corporation
(herein "Odmark") and the City of Carlsbad, a municipa:L
corporation (herein "city").
WITNESSETH
WHEREAS, Seller is the fee owner of certain parcels
property in the City of Carlsbad known as Parcels D, E, E
and F, each of which parcels are more particularly descri
Exhibit A attached hereto and by this reference made a pz
'hereof. Parcels D, E, E Prime and F are hereinafter some
collectively referred to as the "Property";
WHEREAS, Grove Apartments Investment Co. and Odmark
entered into that certain Agreement for Purchase arid Stall
Real Property and Escrow Instructions, dated as of May 3
1985, which was from time to time amended (the "Odmark
Agreement"), and which provided for the sale to Odrnark o
Parcels D, E and E Prime. All of Odmark's right, 'cit1.e
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I interest in, to and under the Odmark Agreement are herein-
after referred to as the "Odmark Rights";
WHEREAS, Seller and City each are parties to that
certain Agreement for Purchase and Sale of Real Property
dated as of July 10, 1986 (the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, on
November 4, 1986 a ballot measure was submitted to the vo
of the City of Carlsbad regarding, among other thinqs, th
acquisition of the Property by the City. Such ballot mea
received slightly less than the 2/3 affirmative vote requ
and therefore was not approved;
WHEREAS, given the closeness of said vote, the City
nevertheless determined to acquire the Property upon the
threat, and in lieu of, condemnation of the Propert:y, and
purchase and have assigned to it the Odmark Rights, provi
i.t obtained the requisite vote of the registered voters
within the City authorizing or approving such acquisitfion
WHEREAS, the City caused the Acquisition Ballot Meas
to be submitted to the voters of the City of Carlsbad at
special election held on March 3, 1987, which Acquisj.t:ion
Measure was approved by receivlng a majority of the votes
therefor, and which authorized the City to acquire the Pr
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arid the Odmark Rights for cash and for the "Purchase E'rice
hereinafter defined) ; and
WHEREAS, Seller and City desire to amend and restate
entirety said Purchase Agreement solely in accordance witk
terms hereof.
NOW, THEREFORE, in consideration of the mutual pi:oirni~
covenants hereinafter contained, and for other good and vi
consideration the receipt of which is hereby acknowletlged,
parties hereto agree that the Purchase Agreement is hereb)
amended and restated in its entirety as follows:
1.0 Purchase and Sale of Property - Assignment. ___- i3tmd
- Acceptance of Odmark Rights.
1.1 As used herein, the term "Property Cl.o;se 01
Escrow" denotes the time at which Seller's deed conve.ying
to the Property to the City is recorded.
1.2 City hereby agrees to purchase, and Selle:
hereby agrees to sell, the Property, and Odmark hereby ag:
to assign, and City hereby agrees to accept, the Odniark:
Rights on or before July 3, 1987 on the terms and subject
the conditions hereinafter set forth. The purchase price
the Property and the Odmark Rights (the "Purchase Price")
shall be $6,457,834.55 if the Property Close of Escrow oc
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on or before June 2, 1987, and $6,572,934.55 if the Proper
C:Lose of Escrow occurs after June 2, 1987 but before ,July
15387. Subject to Section 3.0 hereof, the Purchase Pri.ce
shall be payable in cash, or by certified or cashier's che
through Escrow and shall be disbursed as follows: To Sell
$5,755,000.00 if the Purchase Price is $6,457,834.55, or
$5,870,100.00 if the Purchase Price is $6,572,934.55; to
Otlmark, $702 , 834.55. Upon the Property Close of Escrow,
Seller shall immediately remit to Odmark the sum of $2:25,(
representing the amount of all deposits previously pa.it9
to Seller by Odmark under the Odmark Agreement. The City
hereby acknowledges that it shall have no right or c1a.im t
ainy of such deposits.
1.3 All parties hereto shall execute and delive
t'o Escrow an Agreement for Settlement of Disputes and 1Yut~
Releascs (hereinafter the "Release Agreement") in the forn
Exhibit B attached hereto, which Agreement shall be bi:ndir
and effective upon the Property Close of Escrow.
1.4 Odmark and City shall execute and deliver t
Escrow an Assignment of the Odmark Rights in the form of
Exhibit C attached hereto, which Escrow shall deliver to t
City upon the Property Close of Escrow.
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1.5 Not later than five (5) business days fall
ing the execution hereof, Seller, City and Odmark shall. o
an escrow ( "Escrow") with First American Title 1nsuranc:e
Company ( "Escrowholder") and shall deposit with Escrowhol
fully executed counterparts of this Agreement for u:;e as
Escrow Instructions, together with Escrowholder's usual. fc
of supplemental escrow instructions (if any) for transa.ct:
of this type; provided, however, that such supplemental.
instructions shall be for the purpose of implementing t:hi
Agreement and such instructions shall incorporate this
Agreement by reference and shall specifically provide tha,
provision thereof shall have the effect of modifying this
Agreement unless it is so expressly stated and initialed c
behalf of City, Seller, and Odmark. By such deposit:,
Escrowholder is hereby authorized and instructed to act ir
accordance with the provisions of this Agreement. Seller,
City, and 0dmar.k shall each deposit such other instruments
documents and funds as are necessary to effect the clwe c
escrow in accordance with the terms hereof.
1.6 The parties hereto acknowledge and agree tk:
t:he Revised Stipulated Judgment by and between Seller and
City dated September 9, 1986, (the "Revised Stipulated
Judgment") is and shall remain in full force and effect
pending the Property Close of Escrow, and that, thereafter
tlne rights of the parties hereto thereunder shall terrninat
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e.xcept as expressly provided in paragraph 2.6 of the I?elez
Agreement (Exhibit B) . The parties acknowledge and agree
that, upon the Property Close of Escrow, the so-called "Si
Still Agreement" by and among the parties, dated Ju1,y 10,
1986, shall automatically terminate and be of no further
force and effect as to the rights of any party heret,o 'con-
cerning the Property.
2.0 Policy of Title Insurance.
2.1 At the Property Close of Escrow, Seller sh(
furnish through the Escrowholder, at Seller's expense, a (
Standard Coverage Owners' Policy of Title Insurance for t!
Purchase Price (excluding the amount allocated to the Odm
Rights) from First American Title Insurance Company insur
title to the Property vested in City, subject to those
matters ( "Permitted Exceptions") identified on Exhibit D
hereto, and the lien of taxes not delinquent. Seller bel
that it will be able to deliver a title policy at the app
priate Close of Escrow in accordance with the requirement
hereof. If, however, the title company shall be unwill-in
issue such policy in such condition, City may waive the
discrepancy and close this transaction in accordance with
terms, or object to the discrepancy, in which case 'the tr
action (and all of the City's obligations hereunder) shal
terminate, and Seller shall not be liable to City f,or dam
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'r.
2.2 Real property taxes and assessments shall 1
aid by Seller through the Close of Escrow based on the la1
tax information available to Escrowholder. Escrow shall
notify the County of San Diego that the Property has keen
to a public entity, and shall request cancellation of any
real property tax or assessment obligations which otherwi;
would be required from and after Close of Escrow. Seller
shall convey title to the City in and to the Property t31y
grant deed; provided, that such grant deed shall rec:ite t:
it is made subject to all matters of record and the Permi
Exceptions.
2.3 City shall pay one half of the Cost of E:sc
and Odmark and Seller shall each pay one quarter. !;ell.er
shall pay the Expense of any local documentary taxes.
F.ecording and other miscellaneous costs and expense:; shal
be shared in accordance with tYe custom of the
E:scrowholder.
3.0 Exchange of Property.
3.1 The parties identified herein as Seller ha
owned the Property (other than Parcel F) as partners of a
partnership, and own Parcel F as shown on Exhibit F. l?ri
to the Property Close of Escrow, Seller has caused or wi1
cause such partnership to distribute the Property to the
respective Sellers so that the transactions contemplated
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hereby will take place at the individual partner 1eve:L.
Accordingly, each individual partner is a separate Se:L:ler
even though it is agreed that the respective closing w:ith
each of the Sellers are to be concurrent and conditional 1
one another. In addition, each Seller shall have th.e :rig1
as to his interest (or any portion thereof) in the Froperl
to elect to cause the transaction as to such interest 'or i
such portion(s) to close as a "tax free exchange" pursuanl
t'o the provisions of Section 1031 of the Internal RE. venue
Code. In the event that any such Seller shall elect; to ci
the transaction to close as a "tax free exchange", City ai
s,uch individual Seller agree that no such exchange Ejhall
delay any Close of Escrow hereunder; and each Seller agrec
that the City shall be indemnified from any expenses or cc
which may be incurred in connection with such exchange.
4.0 Condition of Property.
4.1 City acknowledges that nc?ither Seller nor
Odmark, nor any of Seller's or Odmark's employees, agents
representatives have made any warranties or representatio:
concerning or regarding the suitability of the Property f'
construction or support of structures of any type, its us
a1 public recreational facility, or for any other purpose
use.
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5.0 Representations and Warranties.
5.1 The City hereby represents and warrants to
Seller and Odmark as follows:
5.1.1 City has the full and lawful power
a.uthority to enter into this Agreement and consummate the
transactions contemplated hereby and by the Acquisition
Elallot Measure.
5.1.2 The City has completed the required
environmental documentation in compliance with the Ca.l.:tfo
Ehvironmental Quality Act, relative to the acquisit:icIn of
E'roperty, and the City's Planning Commission has made! the
requisite finding relative to the acquisition of the PICOP
pursuant to California Governmental Code Section 65,4CG! ..
5.1.3 The City has no present intention t
develop the Property other than for park and/or ope:n Ejpac
purposes.
5.2 Odmark hereby represents and wai;rants to
Seller and City as follows:
5.2.1 Odmark is a corporation duly orgiani
and validly existing and in good standing under the l-aws
the State of California and has all requisite corporate F
;and authority to enter into this Agreement and to cai~y c
the transactions contemplated hereby.
5.2.2 All necessary or appropriate cor:por
acts and procedures required for authorization, execu'tior
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delivery of this Agreement by Odmark have been lawfully ai
properly taken.
5.2.3 Other than an assignment to Collins
Development Corporation ("Collins") , Odmark has not ass,igi
(a) the Odmark Rights and/or Odmark Agreement, or (1)) a.ny
claims that it may have under, arising out of, or in
connection with Odmark's attempts to develop the Property
and/or the Odmark Agreement, and/or the Odmark Rights.
5.3 Seller hereby represents and warrants to t:
City and Odmark as follows:
5.3.1 That as to that portion of the Prop1
other than Parcel F, and subject to paragraph 3.0 above,
it is a general partnership organized and existing under
laws of the State of California, having its principal pia'
of business in the County of Los Angeles, California, and
authorized to execute this Agreement on behalf of Selle-.
5.3.2 That those persons identified as Se
have among them persons with the full authority necessary
fully and completely convey all right, title, and interes
Parcel F to City.
5.4 All representations and warranties contain
i.n this Agreement and any of the Exhibits hereto made by
of the parties hereto shall survive the Property Close of
Escrow.
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6.0 Rescission of Government Actions, Dismissal of ----
- Litigation, Assumption of Liabilities, Indemnities, ---- and
- Release of Claims.
6.1 Seller, Odmark and City hereby agree that,
upon the Property Close of Escrow, City shall rescind the
actions and decisions of the City Council of the City c:er'
ying a Final Environmental Impact Report concerning the
proposed development of the Property, and approving a Gent
Plan Amendment, Land Use Plan, Site Development Plan, z:on(
changes, and Master Plan amendments concerning the Proper
which were and are the subject of a referendum petition (
"City actions and decisions").
6.2 Seller, Odmark and City shall, upon the
Property Close of Escrow, each release any claims it may
have against any other party hereto with regard to any of
City actions and decisions.
6.3 Seller, Odmark and City hereby agree thalt,
upon the Property Close of Escrow, Seller and Odmark shal:
file a Request for Dismissal of Civil Action No. N362151,
entitled Odmark Development Company, et al. v. City _- of
Carlsbad, et al., each party to bear its own costs.
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6.4 Seller, Odmark and City hereby agree to
execute the Agreement for Settlement of Lawsuit and R.e:l.ea
a.ttached hereto as Exhibit H, and hereby authorize their
a.ttorneys to execute and cause to be filed a Request for
Dismissal Without Prejudice of the action entitled
"Friends of Hosp Grove, etc. v. City of Carlsbad, being C
Action No. N35426 in the San Diego Superior Court.
6.5 Upon the Property Close of Escrow, City sh
execute and deliver to Seller and Odmark concurrently wit
the close of such Escrow, a general release of Sell,er i3nd
Odmark and of their agents, employees and partners (i.n th
form of Exhibit B) from any and all claims, losses or der
of any kind whatsoever arising out of or connected .wi.t:h t
c:ondition of the Property previously or hereafter exi.stin
occurring upon the Property or unsuitability of the €'rope
for any use, and hereby agrees to hold Seller and 0dma:rk
harmless from any such claims, etc. brought by a purc:hasc
user of any of the Property from City, except any cla:ims,
etc. arising from any negligent acts of Seller, Odmarlr OX
their agents.
6.6 Odmark agrees to indemnify, defend and :ho1
Seller and the City, or either of them, harmless from anc
against any and all claims, demands, suits, loses, damage
'costs, expenses (including attorneys' fees), and 1iab:ilit
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which may be imposed on, incurred by, or asserted against
Seller or the City, arising out of or in connection w:tt:h c
based on Odmark' s breach of the warranties and representa-
t:ions contained in paragraph 5.2.3 above, and further agre
to obtain from Collins and to deliver to Escrow an Agreeme
and Release in the form of Exhibit G attached hereto.
6.7 City hereby agrees (a) to release and disc1
Seller from any and all of the obligations of Seller under
the agreements identified on Exhibit E hereto, and (b:) to
assume and fully and timely perform all of the ob1igal;Lon:
Seller under the agreement identified on Exhibit E-1 heret
7.0 Miscellaneous.
7.1 Attorneys' Fees. If either City, Seller OL
Othark commences an action against the other to enforce ar
of the terms of this Agreement or because of the breach bq
City,. Seller or Odmark of, or any dispute concerning, my
the terms hereof, or if Escrowholder commences any actLon
with regard to the Escrow, the losing or defaulting party
shall pay to the prevailing party (and to Escrowholder in
ciase of any action by Escrowholder) reasonable attorneys'
fees, costs and expenses incurred in connection with the
prosecution or defense of such action.
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7.2 Notices. All notices, deliveries and tle:mar
of any kind which any party may be required or may desire
give or serve upon another shall be made in writing and sk
be delivered by personal service or sent by registered or
certified mail, postage prepaid, return receipt requested,
the address of that party set forth below:
If to City: City of Carlsbad 1200 Elm Avenue
Car 1 sbad , California 92008- 1'389
Attention: City Manager
With a copy to: Vincent F. Biondo, Esq.
City Attorney
City of Carlsbad 1200 Elm Avenue
Carlsbad, California 92008- 1!3!39
Attention: City Manager
If to Seller: HFH, Ltd. 10738 W. Pic0 Boulevard
Suite 3
Los Angeles, California 90064
With a copy to: Sidley & Austin 2049 Century Park East, 35th l?loc
Los Angeles, California 9006'7
Attention: Howard J. Rubin.ro:it,
and
John Bartman
9601 Wilshire Boulevard
Suite 810 Beverly Hills, California 902:lO
If to Odmark: Odmark Development Company 1747 Hancock Street, Suite B
San Diego, California 92101
With a Copy to: Peterson, Thelan & Price
530 "B" Street San Diego, California 92101-4454
Attention: John D. Thelan, Esq.
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Any such notice sent by mail shall be deemed to have been
received by the addressee on the fifth business day afTt:er
posting in the United States mail unless actually received
earlier. A party may change its address by giving the oth
parties written notice of its new address as herein :pr:ovid
8.0 General Provisions.
8.1 Effect of Waivers and Consents. No wai.ver
default by any party or parties hereto shall be implied fr
any failure or omission by a party or parties to take any
action on account of such default if such default per,;'. = I :3ts
is repeated, and no express waiver shall affect any td€tf:iaul
other than the default specified in the express waiver, an
that only for the time and to the extent therein stated.
or more waivers of any covenant, term or condition of this
Agreement by a party or parties shall not be constru,ecl to
a waiver of any subsequent breach of the same or any c)t:ker
covenant, term or condition. The consent or approval by a
party or parties shall not be deemed to waive or render
unnecessary the consent to or approval by said party ox:
parties of any subsequent or similar acts by a party ox:
parties.
8.2 Modification of Agreement. This Agreement
be amended, modified or changed only by a written inst:mme
signed by City, Seller and Odmark. In the event of any
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conflict between the provisions of this Agreement arid any
subsequent escrow instruction, as such may be amended fro1
time to time, this Agreement shall control as between Cit?
Seller and Odmark unless the escrow instructions expressl.
state that this Agreement is being amended thereby and sa
escrow instructions are signed by City, Seller and Odmark
8.3 Construction of Agreement. The language i
all parts of this Agreement shall be in all cases constru
simply according to its fair meaning and not strict:Ly for
against any of the parties hereto. Headings at the begin
of Sections and Subsections of this Agreement are solely
the convenience of the parties and are not a part 0.E this
Agreement. When required by the context, whenever the
singular number is used in this Agreement, the same shall
include the plural, and the plural shall include the sing
the masculine gender shall include the feminine and mute
genders and vice versa; the word "person" shall inc-lu.de
corporation, partnership or other form of association; an
the words "City", "Seller" and "Odmark'' shall include the
respective heirs, personal representatives, successors an
assigns, if any, of them.
8.4 Choice of Law. This Agreement and the tra
action herein contemplated shall be construed in accordan
with and governed by the laws of the State of California
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.a
applicable to instruments in all respects made, delivered,
and to be performed solely within the State of Califoirnia.
8.5 Merger of Prior Agreements and Understandir __-
This Agreement, the Revised Stipulated Judgment, and the
Exhibits hereto and thereto contain the entire understandi
between the parties relating the purchase of the Property
assignment of the Odmark Rights and all prior or contempox
aneous agreements, understandings, representations and
statements, oral or written, are merged herein and shall 1
of no further force or effect.
8.6 Further Acts. Each party, upon the requesl
the other, agrees to perform such further acts and to exec
and deliver such other documents and instruments as are
reasonably necessary to carry out the provisions of this
Agreement.
I-
8.7 Severance. Should any portion of this
Agreement be declared invalid and unenforceable, then sucl
portion shall be deemed to be severed from this Agreement
shall not affect the remainder thereof.
8.8 Rule Against Perpetuities. The transactioi
contemplated hereby must be consummated, if at all, withii
the time permitted by the Rule Against Perpetuities,
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no
including modifications thereof, currently in force in tht
State of California.
8.9 Incorporation of Exhibits. Exhibits A thrc
H are hereby incorporated into this Agreement as if set 01
i:n full at the reference thereto herein.
8.10 Memorandum of Agreement. Subject to the
flollowing sentence, City shall not record this Agreemznt (
a:ny evidence hereof. However, at the request of City, Se:
a:nd Odmark shall execute a memorandum with respect t,o thi;
Agreement which City is hereby authorized to cause t.o :be
recorded in the Official Records of San Diego County. Suc
memorandum shall not change or otherwise affect any of tht
o:bligations or provisions of this Agreement.
8.11 ExecutS on in Counterparts. This Agreement
be signed in counterpcrts with the same effect as if all
parties hereto had signed the same signature page. All
counterparts shall be construed together and shall c:onsti'
one Agreement. Any signature page of this Agreement: :may 1
detached from any counterpart without impairing the legal
effect of any signatures thereon, and may be attached to
another counterpart identical in form thereto but having
attached to it one or more additional signature pages.
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-4 r ,. 8.12 Effect of Agreement to Purchase Price. Cit
agrees that it will not argue in any legal or eqyitab:Le
proceeding between it, Seller and Odmark, or any of them,
that Seller's and Odmark's agreement herein to the Puixha~
Price (as it relates to both the Property and the Odmark
Rights, respectively) , or Seller's and Odmark's execution
this Agreement is evidence of the fair market value of the
Property or of the Odmark Rights.
8.13 Limitation of Remedies. It is hereby agree
that other than as a result of the City's failure to purck
the Property at the Property Close of Escrow and/or to pal
tlne Purchase Price specified herein, no party hereto :shall
have the right to recover or seek recovery of damages .fron
tlne other by reason of any breach or default by such. othei
party of any of the terms of this Agreement, and tha.t the
sole recourse for any such breach or default shall be to
seek non-compensatory relief , including, but not limited 1
by way of writ of mandamus or prohibition, dec1arator:y
r'elief , injunctive relief , specific performance, contempt,
similar remedies.
8.14 Purchase Agreement Superseded. Upon the fi
execution of this Agreement by the parties hereto and the
delivery of this Agreement to each party, this Agreement I
automatically supercede the Purchase Agreement; the P'urchi
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Agreement shall be of no further force and effect; and Sel
City shall be relieved of all obligations under the Purcha,
Agreement -
8.15 Survival. The representations and warrantit
contained herein shall survive the Property Close of Escro\
IN WITNESS WHEREOF, City, Seller and Odmark: :have
executed, or caused this Agreement to be executed by t:wir
authorized officers, agents or representatives, as of the c
year first above written.
GROVE APARTMENTS INVESTMIIIVT C
a partnership
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H.F.H., LTD., a CaliforxLa
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Its: General Partner
24 $2 6
BERNARD CITRON TRUST
’- ,’- /G: J./,[f,-* / ( 1 2. ,ty~;&& --__.. /<
i-”-’c - YT --?--- I
By: I ,v ,J
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--__ Its: /&’[-/&/ &/-:
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~--- FRED A. BARTMAN, JR. /”’ ’
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MARITAL TRUST UNDER THE WIL
WILLIAM S. BARTMAN
---
RESIDUARY TRUST UNDER THE W OF WILLIAM S. BARTMAN
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THE ODMARK DEVELOPMEN'PC. P
By : Q?GL<z- ---
Its: 7 a?23/436Px~~ ---
John Thelan
SIDLEY & AUSTIN
Howard J. Ehbinroit
EIJR187B
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EXHISIT A
PARCELS E, E and E PRIME
LE G .:-i 3L S C P I FC I 0';s
CVuintr A
0 a 'I '.
Ttt JE-c' rtfrrrc: tc tcrcrr 15 E:~L~!z? ir ttc Stctt r! Ci:jfcrr,je, ('cL-1
:E: T-cg:. E.TC ,c c1:-:-:<: is ::--cL$
PARCEL 1
Iortjons of Lots 8, 9, 10, 11, 12, 13, 14, 15 and 16 in Rosp Eucalyptus TI
Corpanj's 7rscr Kc. 1, ir. the City of CbrlsCaC, Cour.ty of Sar Diego, Stat
California, accordinr to Rap thereof KO. 1136, file? in the Office of the c
Recorder of San Diego County, June 6, 1906, described 85 follovs:
Coamencing at the Southeast corner of said Tract, thence along the Eaist lil
said hact fiorth 00'56'20" E86t, 2263.66 feet, 6aid point being South 00"51
West, 111.74 feet froo the West Quarter corner of Section 32, Township 11 s
Bange I Uest, San Bernardino Base and Ilerldian; thence Worth 89*18''10"
16.07 fEet to the ?rue Point of Beginning; said point being on a DDipta
cuwe concave Southeasterly ad having a radius of 310.00 feet, a radid u1
raid point bears Worth 43'14'53" West; thence Soutbvesterly along #;aid !
through a eentrd angle of 41'33'00" an arc dirtance of 221.81 feet; t
leaving said curve North 89'18'10" Yest 557.72 feet; thence South 61"25'08"
305.23 feet, tbeDCe llorth 10'19'07' West, 374.05 feet; tbence krth 79'4
hSt, 272.00 feet; thence North 02'01'30" West, 699.16 feet to a point on a
tangent cuirwe concave Southwesterly axxl having a radiw of 761.50 feet, a r
line to said point bears North 10'06'51" Last, thence Southeasterly t~long
cave through a csotrd *I@? of 03'23'09" an arc distance of 45.00 feret, t
tangent to said curve South 76'30'00" East, 350.95 feet, thence North 1.00
thence South 76'30'00' East, 339.00 feet; thence South 350.00 feet; thence
06'51'553' East 261.11 feet to the frue Point of Beginning.
hcepting thercfrm that portion dewrlbed as follow:
Commencing at the lortheasterly comer of Carlrbad hact No. 77-2, &Lit W.
according to Hap thereof No. 9813 filed in the Office of the County 1La:orde
raid San Ddego County, September 26, 1980; thence North 1.01'10' East, ulon
Easterly line of said Eorp Eucalfptus Fortrt Ccrmpany'c h8Ct 830. 1, tM3.48
thence North 89'11'20' Ve6t, 46.07 feet to the True Point of beglnniiy; an beginning of a oor~t8ngcot curve, concave Southeasterly ad bavi~g a radi
310.00 feet; tbence Southerly along .aid curve through a centrad ang
11'32'30' an arc dirtr~ce of 224.79 feet; thence Ieaviqg raid curve,
89'11'20' West, 30.085 feet to the beginning of a noa-tangent curve, ea
Southeasterly ad having a radius of 340.00 feet; tbeacc krtherly riloqg
tume through a centra 8ngk of 45'35'15- ad 8rc distance of 270.52
thence leiwing mid curve Soutb 6'45'03" &st, 36.41 feet to the TXw! Poi
btginnlng ,n
5
9
. .. - a e .&
FCFCfL 2
fort1cr.s of LC~E E. 5, I(, ;C, 17, I€, 23, 24, 25, CERGC Strrri
fucalyptus Street In BOSF Luci3)pptus Forest Coupany's Trect ho. 1, In
of Carlsbad, County of San Diego, State of Califorcia, 8ccordlQg to Ita
NO. 1136, filed In the Office of the County Recorder of San Diego Corn
6, 1908 described 86 follovs:
CanencinE at the most Southvesterlp corner of Lot 25 In said tract along the Southvesttrlg 11~~ of sald Lot 25 Korth 23'27'45' Uest, 1S15b4
thence horth 68'30'20' East, 360e41 feet to the True Point of Begfnnlirig
Korth 18"09'57" %est, 40.89 feet to the beginning of a tangent cui-ve
Northeasterly and having a radius of 1042.00 feet; thence Eorthwester
rsfd curve thru a centrd angle of 14'35'28" 8x1 arc dl6tance of 2~~5.
thence tangent to said curve North 03'34'35' Vest 94.02 feet to the bqgj
8 trngent Curve concave Southuerter~y 8nd h8ving a radfus of 4S8.00 feet
Northvestclrly along raid curve thru 8 centrd angle of 22'18'38" 80 an:
of 178.34 feet; thence tangent to said curwe North 25'53'13" Vest 189.2C the beginning of 8 tangent curve concave lortheacterlp 8nd h8ving 11 r
1042.00 feet; thence North-sterlp do% raid curve thru central 4
10'17'57" an arc distance of 187-30 feet; thence tangent to said rnlr
15'35*16" Yest, 108.11 feet to the beginning of 8 tangent ciurae
Southvertcerly md hrving 8 radius Of 20.00 feet; thence Eorthverterllp d
erne tbru central angle of 88'16'68' 813 arc distance of 30.82 feet to of cusp ivith a curve ~oucive Rortbveoterly and having a radius of 8:
radial line to said point of cusp bears South 13'52'04' bet;
Rortbersterly along the 186t Dentioatd cume thru a central angle of 0
10 arc distance of 25.17 ftet; thence tangent to said CU~E Rorth 74°,24'4
140.00 feet to the beginning of 8 bngent curve conc8ve Rorthvester11y i~nd
8 radlue of 838.50 feet; thence Rortheasterly do% 8aid curve thn~ 8
angle of 13'24'(,4' an arc distance of 196.28 feet; thence tangent t:o iBal
lbrth 61"00'00" brt, 174.31 feet to the bepinniqg of a tdngent c:u!m
Southeasterly ad boing 8 r8dfu6 of 761.50 feet, thence Ea6terl:y ado curve thim centrd angle of 39'06'51' ~II arc distance of 519.85 feet;
South OOoOl'30' East 699.16 feet; thence South 79°40'53' West, 27'2.0
tbeoce South 10'19'07' LIst 374.05 feet; thence South 68'30'20' &st,
feet to fthe True Point of Beglaning.
Exccptlqg therefroo 10 84 foot wide strip of bnd, 42.0 feet each s:Lde
folloviqg dercrfbed centerhe:
brrrencilag at a point on the Uerttrfy lfoe of said Lot 25 dlstant ctbtreo
23'27'4S' Yecit, 195.00 feet frm tbe &x~thuest toner thereof; thence
said Westerly Bine North 68'37'10" East (record Rorth 68'30'28' hist pi
402.52 feet to the true Point of Beginning; thence lbrth 18'03'07" IUert,
feet to tbe beglonlng of I tangent tune, concave Easterly aad htrirqg I
of 1000.00 feet; thence dosg said curve through 8 central .-le of 14'35
arc dlrtanct of 254.61 feet; tbeoce t8ngeot to uid cum brth 3"2'7'44' 109.90 $cet to the beglnniag of 8 t8ngtnt curve, concave Westerly 8~~l hc
rdluc of 800.00 feet, thence along mid CuNe through a ceotrril 89
. -- . 0 0
25'22'3C' &r erc distsncr of 35S.3C fert, therct tanpert to said cur\€ .. __ -L kc$:, :tg .:5 fet: tr tLL ?tt-:-:r+ ti i ET^€:: CLT~~ ccr:k.z 1;s
ar.C t.a\icE P radlut of 6C'C.K feet; tttr:ct 03cr.g rzid curve throulft. a ce
aqle of 13"21'49' an arc distance of 186.S9 feet; thence Urth 15'2€'25"
30.W feet more or less to the Southerly right of way line of harron Road.
rldeliaes of said 84 foot vlde street shall tereiaate vith 20.00 foot I
returns at said Southerly right of uay line of Yarron Road.
FARCEL 3
Portions of Lots 22, 23, 24, 25 en6 of EucelyFtus Street In Ho6;p E,ucd
Forest Cm:pany's Tract bo 1, in the City of Cerlsbad, County of &en I
State of C:allfornla, according to hap thereof KO. 1136, filed in the off1
the County Recorder Of San Diego County, June 8, 1908, descrlbed as follovs
Caramenciag 8t the lost Southvesttrly comer of Lot 25 in said tract; t
dong the Southvesterly line of said Lot 25 North 23'27'45" West 195.00 thence North 68"30'20" East 360.41 feet; thence North 18'09'57" Yest 40.89
to the beg$nnirtg of a tangent cum€ Concuve brtbeasterly and bsvlqg a t8dj lOb2.OG fret; thence Northwesterly along said curve through a centic.1 8ng 01'38'58' M arc distance of 30.00 feet to the True Point of Beginning; t
continuing dong mid curve through a central angle of 12'56'24" an .IC dic
of 235.33 feet; thence tangent to said curve North 03'34'35' West 94.02 fe tbe beginiiiq of tangent cume concave Soutbverterlp and having a rad1
458.00 feet; thence Northwesterly dong said curve through a centrill ang 22'18'38" an arc distance of 178.34 feet; thence tangent to said curve 25'53'13" Yest 189.20 feet to the beginnlug of a tangent curve ca
krtheastctnlp rad having a radius of 1012.00 feet; tbcnce Rorthveibtarlp
uid curve through 8 central 8qle of 10'17'57' 111 arc dlrtance of 187.30 thence tangent to raid =rue North 15'35'16- West 108.41 feet to the begi
Of 8 tangarnt curve CODCt7e Southuerterly 8d h4Viw 8 r8dius Of 20.00
thence Norttuestarly dong raid cune through 8 central angle of 88"N6'4: arc distance of 30.82 feet to I point of reverse curve concave Iioritherlj
bvilrg 8 r.dius of 838.50 feet; thence Westerly dong .aid reverfie CiUfvle tt
a centril angle of 32'08'S2' an arc distance of 470.17 feet; throice
07'34'20" West 213.72 feet; tbcnce South 66'59'00' East 248.29 feat; t
South 25'!53'13" East 590.00 feet; thence Soutb 66'4S'SO" East 330.26 feet t True Point of Beginning.
Excepting therefra an 86 foot dde strip of had, 42-00 feet crch rlcle o
following de ~ribcd center line:
Wenciqg at 8 pint on the Westerly line of said bt 25 dirtant thettcoo
23'27'45" West, 195.00 feet frm tbe Southwest corner tbereof; thence le raid Westerly line Rorth 68'37'10' East (fccord Rorth 68'30'28' &st lser
402.52 feet to tbt true Point of Beginnlog; thence Bortb 18'03'07' Lkwt,
feet to tbe kgidng of a went CIMC, toacavc Easterly .pd hvtqj r
of 1000.00 feet; tbeoce dong said curve through 8 ecnttd angle of 114D35'2
~YC dirtnnce of 2M.61 feet; thence trngent to 88id curve lortb 3'3!7''4d' '
109.90 feet to the beginniqs of a t8Dgcnt curve, COOC~VC Uertenlp rid h8o
-'cc-, .
.. " -- . 0 e
rsCius of E@Cl.GO fret, thence alonf said curve thtouf) a centrml ant
r: i.'j<. E: E:; I:F:ET.;~ c! 356.3: ~CCI; tt.rrct tarit:.: tc ~~ie I;CTV~,
ZE'5C'iL" Lest, 10t.14 f€tt tG th€ bqir,nfng of a tanEer.t cuft'c conce~t E&!
and havlng a radius of 800.00 feet; thence along said curve through a Ct
angle of 13"2l'L9" an arc distance of 186.59 feet; thence Korth 15'28'25''
30.00 feet -re or less to the Southerly right of vay line of Wsrro:n Road.
sidelines off raid 84 foot vide street rhall terminate vith 20.00 float 1
returns at sald Southerly right of vay line of Warron Road.
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PXRtEL F
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CYurniTA ,
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The land referred to herein is situated in the State cf Californi,a,
San Diego, and 1s described as follows:
PARCEL 1:
Those portions of LOf6 19, 20, 21, snd 33 and of Eucalyptus Strehe
EUCALYPTUS FOREST COa?PCLKY'S TRACT NO. 1, in the City of Cerlsbad, COUI
Diego, State of California, accordlng to Yap thereof So. 1136, fl1
Office of the County Recorder of San Diego County June 8, 1908, cdcc
f ollovs:
Comencfng at the Southeast corner of said Lot 20; thence along thc
line thereof, North 06°58'00' &st 278.00 feet to the TRUE POINT OF
thence South 70"28'24' Uerrt 505.81 feet; thence North 89'29'00' Vert. 2
to a polnt on o nowtangent 462.52 foot radfur curve concave lorthw
radial line of *ish bears South 49'22'30' East to .aid pc1f.n
Bortbearterly dong the arc of raid curve through a central angle alf (
a distance of 43.72 feet; thence tangent to raid curve, Uortb :3Solj
419.14 feet to the beginning of taqent 490.00 foot radiur clum
Southeasterly; thence Northeasterly aloog the 8rc of raid curve,
central angle af 37°47'39', 8 distance of 323-22 feet; thease tringen
curve lorth 73'00'14' East 111.94 feet to the beginning of a tangent 2
radius c:urve concave Southwesterly; thence krterly and Southeastlerly
arc of raid curve, through a central angle of 86.40'30', 8 diatance
feet to the begfantng of 8 reverse 842.00 foot radfue Iturve
Uorthearterlp; thence Southe88ter1p along the arc of said curve!, 1
central angle of 21'45'00', a dirtance of 363.72 fzet; thence South
West 16lL.50 feet to 8 point vhich bearr North 70'28!24' hsr from the T
OF BEGINNXHG; thence South 70°28'24' Uert 69.19 feet to the "EUE
B~GI~lPh;
EXCEPIII!iG THEREFROH those portion8 lying Rortheastcrly of the Southiwst
of raid tucalyptur Street.
PARCEL 2:
Those prtionr of Lot8 19 and 20 in EOSP EIYCALTPIUS ?OBEST C0kPAIPf"S '
1, to tbc City of Carlsbad, County of San Dlego, State of CaPiforuLo, 4
to Map thereof Bo. 1136, flled la the Office of the Cemty Recorder of !
County, June tIB 1908, dcrcrlkd as follovr:
-.-- -__-, - : -: I. . . e e -. - - - c. CF,f? !I:. C*-':..-L
6rgisr.irg at thr SC,:~'EES: ccrr~r cf SE:? Lct 2c; t?,F-ze alorg 1.b~
line of said Lots 20 and 19, Korth 89'29'00' h'est 761.61 feet to a p
non-tangent 462.52 foot radius curve concave Northvestcrly, 8 r8dj u
which bears South 29'16'10' East to mid point; thence Xortheastexly 8rc of 8idd curve through a central 8-k of 20'06'20' a dirtrace!
feet; thence South 89'29'00' Eart 213.74 feet; Cheace North 70';!8
505.81 feet to an intersection vith the Easterly line of Bald tat 2
along caid Easterly line, South 06'58'00' West 278.00 feet to the
Beginning4
PARCEL 3:
Tbore portions of Lots 19, 20, 21, 8od 33 of Eucafyptus Street
EUCALYPTUS FOREST COHPANY'S TRACT NO. 1, in the City of Carlsbad, bun
Dicgo, State of California, 8ccOrding to Xap thereof lo. 1136 file
Office of &he County Recorder of Sln Bftgo County June 8, 1908, der(
f011~8:
Comeacing at the Southeast corner of raid Lot 26; tbence along the
line tbtreof; Worth 06'38'00' brt 278.00 feet to the TEUE POlRT OF 11 tbence South 70'28'24' Vert 505.81 fctt; tbcnce 89'29'00' Vert 213.74 1
point on a noP-tangent 462.52 foot radio8 curve CO~C~VC Borthvcrttrly,
line of which bears South 49'22'30' tr8t to 88id point; thence Rortl along the! arc of raid curve, through a central angle 05'24'53', in dir
43.72 feat; thence tangent to raid carve, Bortb 3S'12'35' tart 449.44
the bcgfrmning of a tangent 490.00 foot radius curve concave Socrthc
thence lorthcarterly along the arc of .aid cume, through a central
37'41'39" 8 dirtance of 323.22 feet; thence t8ngent to mid CIJITP(
73'00'14" East 111.94 feet to tbe beglnnlng of 8 tangent 20.06 foot nidi concave Southvertcr1y; thence Larterly urd buthea8terly 810rg the arc
eume, through central angle of 86'40'30' a dirt8oce of 30.26 feet
kgianiq of reverse 842.00 foot rcrdius curve concave Northeamterly
Soutbcarterlp doag tbe arc of raid curve through a central angle of 24
8 dirtance of 363.72 feet; thence South 44'55'44- Uert 161.SO fctrt to
which bear8 Rortb 70°28'24' art fra the rpuE POINT OP BEGI~RC; then 70'28'24" Vest 69.19 fett to the TPUE ?Om OF BEGIWNIRG.
EXCZPTIRC ZgEBEPPOn tbore portionr lying Southucrtcrly of tbe Soutbnrrte of .aid 'Euolyptur Street.
irf r&
- *-. e e
AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
&&E di JhL? %w.
a' a 0
L
)r AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
(day
May, 1987, by and between Grove Apartments Investment 120.
( "Grove") , H. F.H. , Ltd. ( "H. F.H. 'I) , . Harry J. L. Frank, Jr
("Frank") , the Bernard Citron Trust ("Citron Trust") , Frec
Bartman, Jr. ("Bartman"), the Marital Trust under the Wil:
William S. Bartman ("Marital Trust"), the Residuary Trust
the Will of William S. Bartman ("Residuary Trust") (all 0:
foregoing hereinafter sometimes referred to collectively i
"Grove Parties") , Odmark Development Company ("Odmark") , l
City of Carlsbad ("Carlsbad") .
THIS AGREEMENT is made and entered into this __
I
FACTUAL RECITALS
1.0 This Agreement is entered into with reference ti
following facts:
1.1 Grove is and/or previously was the record owner
a portion of certain real property located in the County
$;an Diego (the "Grove Parcel"). The legal description. of
Grove Parcel is attached hereto as Exhibit "l", and incor
herein by this reference.
I* 0 0
* 1.2 For purposes of development, the Grove Parcel wi
divided into sub-parcels A, B, C, D, and E, all as refleci
on the Master Plan of Development, approved by Carlsbad 01
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already been devc
Sub-parcels D and E have the following acreage, whic:h Groi
previously intended to develop with residential units as
D 16.085 acres 130 un:,ts
E 27.675 acres 240 un:tts
1.4 The partners of Grove and HFH, Ltd. are the rec
owners of certain real property located in the County of
Cliego ( "Parcel "F") . The legal description of Parcel F i
attached hereto as Exhibit "2", and incorporated herein b
this reference.
1.5 Parcel F consists of approximately 8.92 acres.
1.6 On or about October 9, 1964, a Grant of Easemen
Right-of-way from Rildan, Inc., a predecessor-in-interest
plaintiff Grove Apartments Investment Co. ("Grove") to th
City of Carlsbad ("Carlsbad") and the Vista Sanitation
I>i strict ( "VSD" ) , as tenants in common ( "Ri ldan Easement"
-2-
dated July 23,1964,was recorded in the office of the County
Recorder,County of San Diego,in Book 1964 at Page 184917.
1.7 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.
1.8 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 18.05 of the CMC,and which imposed
a moratorium on the issuance of building permits in Carlsbad
and a moratorium on the acceptance of applications for and
granting of discretionary approvals for development projects
in Carlsbad.
1.9 On or about September 12,1977,Grove Apartments
Investment Co.("Grove"),a partnership,as successor in
interest 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
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Municipal Corporation, Vista Sanitation District, a Public
Corporation,'' being Civil Action No. N 9052 in the Superic
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 obliga
tions under the Rildan and Fawco Easements and under
Ordinance Nos. 7047 and 7048, as amended and supplernented
1.10 On or about July 31, 1978, pursuant to leave
granted by the Court therefor, Carlsbad filed a cross-com
for declaratory relief adding HFH, Ltd. ("HFH") and Kamar
Construction Company ("Kamar") as parties to this action.
1.11 The trial in the matter commenced in Octoker 1
and continued thereafter, except where recessed, until
November 20, 1978 when all sides rested, with the present
tion of numerous oral testimony and the introduction of
voluminous exhibits by all parties.
1.12 On November 21, 1978, the Court, after hleeiring
argument, issued certain tentative rulings, and ordered
further briefing in said action.
1.13 Subsequent to November 21, 1978, the parties a
others, after numerous meetings and other negotiatlons,
entered into an Agreement for Settlement of Lawsuit and
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: Mutual Releases (hereinafter the "Grove Settlement llgreem
resolving, among other things, all the issues in the acti
1.14 Pursuant to said Grove Settlement Agreement th
parties stipulated to entry of a Judgment Pursuant to
Stipulation (hereinafter the "Grove Judgment") , which
thereafter was duly entered herein, and which provides fo
certain development rights with regard to the property wh
is the subject matter thereof.
1.15 The Grove Judgment provides, among other thing
that the rights provided therein shall terminate after th
10th anniversary of events more specifically referred. to
therein, such that it could be contended that said rights
would cease sometime in late 1989.
1.16 Subsequent to the entry of the Grove Judgmemt,
c:ertain of the real property which is the subject matter
the Grove Judgment was developed.
1.17 In order to develop and/or cause the developme
of certain remaining portions of the real property which
the subject matter of the Grove Judgment, Grove entered i
an agreement with Odmark Development Company ( "Odmark" ) ,
which, as from time to time amended (the "Odmark Agreemen
provided for the sale to Odmark of Parcels D and E of the
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property, Parcel E being comprised of sub-parcels E and E
Prime. All of Odmark's right, title, and interest in,, to i
under the Grove Odmark Agreement are hereinafter referred
as the "Odmark Rights. I'
1.18 Pursuant to the Odmark Agreement, Odmark pr~epai
certain designs and plans for a project involving the
construction upon Parcel E of 216 condominium units (t:he
":proposed condominium project") , thus involving a projlect
dlensity of 10.8 dwelling units ("dus") per acre, exc:llxlinc
d'esignated open space and 40% slopes.
1.19 Prior to January 22, 1986, Odmark submitted to
Planning Department of the City of Carlsbad an Environmeni
Initial Study including numerous reports and supplemental
reports evaluating potential environmental impacts of and
corresponding mitigation measures for the proposed c:onclom:
project.
1.20 The Planning Director of the City of Carlsbad,
after determining that the proposed condominium pro:iect wc
not cause any significant impacts because potential irnpac-
had been mitigated, issued a Mitigated Negative DecI.arati(
dated January 26, 1986, which, on February 5, 1986, was
recommended for approval by the Planning Commission of thc
City of Carlsbad.
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1.21 Odmark applied to the Planning Commission of t:
City of Carlsbad for approval of a two-lot tentative map
216/unit condominium permit with regard to the project.
1.22 By Planning Commission Resolution No. 2538, thl
Planning Commission of the City of Carlsbad recommended
approval of a two-lot tentative map and 216-unit coridomin
permit for the project.
1.23 On March 18, 1986, the City Council of the Cit:
Carlsbad held a public hearing to consider the request by
Odmark to approve the tentative map and condominium unit
permit, and further to consider approving the Mitigated
Negative Declaration issued by the Planning Director and
recommended for approval by the Planning Commission.
1.24 A number of members of the public appeared at 2
hearing to challenge the project, to advocate the acquisil
by the City of Parcels D, E, and F (or portions thereof) j
recreational purposes, and/or to question the conclusilons
the Planning Director and Planning Commission leading to 1
issuance of the Mitigated Negative Declaration.
1.25 By Resolution No. 8468, the City Council of tht
City of Carlsbad disapproved the Mitigated Negative Declai
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and directed the preparation of an Environmental 1mpa.c:t
Report for said project.
1.26 In connection with said action, the City Clounc
voted to cause a review of both the General Plan and Hosp
Grove Master Plan, and to consider the possibility of acq
some or all of Parcels D, E and F. .
1.27 Subsequent to the foregoing, Grove and Odmck
placed the City on notice of their position that the f:ore
going actions of the City Council in disapproving the!
Mitigated Negative Declaration, requiring that an E:nvi,ron
mental Impact Report to be prepared concerning said proje
causing the Hosp Grove Master Plan and General Plan tm be
reviewed were unlawful and in violation of their rights,
including their rights to development under the Judgment
entered in this action.
1.28 Subsequent to the actions of the City Courcil
described hereinabove, members of the public continued to
express a desire to attempt to acquire Parcels D, E and F
some portion thereof , for park and/or recreational :pur-pos
and Grove and Odmark continued to assert their righ.ts to
develop said parcels.
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1.29 Commencing April, 1986, representatives of the
City of Carlsbad, Grove, and Odmark met and otherwise
communicated on numerous occasions in order to resol.ve the
di.sputes which existed between them arising out of the
foregoing.
1.30 On or about July, 1986, Grove, H.F.H., thie Vist
Sanitation District, Kamar Construction Company, and t.he C
of Carlsbad entered into a Stipulation for Entry of :Revise
Judgment in Civil Action No. N 9052, pursuant to which a
Revised Judgment Pursuant to Stipulation (the "Revisell Gro
Ju.dgment" ) has been duly entered therein;
1.31 As of July 10, 1986, Grove, H.F.H., various. of
principals of each, and City entered into an Agreement for
Pu.rchase and Sale of Real Property, pursuant to which, on
November 4, 1986 a ballot measure was submitted to the vot
of the City regarding, among other things, the acquirsit.ion
th.e Property by the City. Such ballot measure received.
slightly less than 2/3 affirmative vote and was not approv
1.32 Thereafter the City determined to acquire the
Property in lieu of condemnation of the Property,
purchase and have assigned to it the Odmark Rights, provid
it. obtained the requisite vote of the registered voters
within the City authorizing or approving such acquisition.
and to
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1.33 The City caused a ballot measure ("Acquisit.ion
E;allot Measure") to be submitted to the voters of the: Cit
a special election held on March 3, 1987, which Acquisiti
Eiallot Measure was approved, and which authorized the: Cit
acquire the Property and the Odmark rights for cash.
1.34 Odmark and certain of the Grove Parties 1na.ve f
em action in the San Diego Superior Court, entitled Oclmar
Development Company, et al. v. City of Carlsbad, et a1 ...
which is Civil Action No. N 36215 in said Court (he:rai.naf
Civil Action No. N 36215).
---
-__ -
1.35 As of May , 1987, Grove, H.F.H., variouzi of -
principals of each, Odmark and City entered into an Palend
and Restated Agreement for Purchase and Sale of Real E'rop
(the "Restated Agreement").
1.36 It is now the desire and intenti!>n of the Grov
E'arties and Odmark, on the one part, and the City o.f Carl
on the other part, to compromise and resolve all of tihe
disagreements and disputes which exist or may exist hetwe
them arising out of the foregoing, above, and also to res
c:ertain other matters. Pursuant to and in accordance with
this desire, and in consideration of the promises a:ncl re1
c:ontained herein, the parties agree as follows:
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I1
DISMISSAL OF LITIGATION AND RELEASES
2.0 Odmark and those of the Grove Parties who axe
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 3621!5, eac
party to bear its own costs.
2.1 Except as expressly provided in paragraph 2.6
below, the Grove Parties and Odmark, and each of then!, do
hereby release and absolutely discharge the City of C:arls
of and from any and all claims, demands, damages, debts,
liabilities, accounts, reckonings, obligations, costs,
expenses, liens, actions and causes of action of every ki
and nature whatever, whether now known or unknown, suspec
or unsuspected, which the Grove Parties and/or Odmark now
have, own, or hold or at ar,y time heretofore ever had, ow
or held against the City of Carlsbad based upon or .ari.sin
out of any matter, cause, fact, thing, act or omission
whatever occurring or existing at any time to and i:nc:I.udi
the date hereof in connection with their ownership 'of and
rights and/or attempts to develop Parcels D, E, and E' (a1
of which are hereinafter referred to as and includeld with
the "Released Matters" ) .
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2.2 Except as expressly provided in paragraph 2.6
below, City of Carlsbad does hereby release and absolute1
discharge the Grove Parties and Odmark, and each of them,
and from any and all claims, demands, damages, debt;;, lia
bilities, accounts, reckonings, obligations, costs, expen
liens, actions and causes of action of every kind and nati
whatever, whether now known or unknown, suspected 01: unsu
which the City of Carlsbad now has, owns, or holds or at
time heretofore ever had, owned or held against the Grove
Parties or Odmark based upon or arising out of any matter
cause, fact, thing, act or omission whatever occurring or
existing at any time to and including the date hereof in
connection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F (all of whic:h are
hereinafter referred to as and included within the "Relea
Matters").
2.3 Except as expressly provided in paragraph 2.6
below, the Grove Parties do hereby release and absol-utely
discharge Odmark of and from any and all claims, demands,
damages , debts , liabilities , accounts , reckonings , obliga.
tions, costs, expenses, liens, actions and causes of: actic
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which the Grove E'artie
now have, own, or hold or at any time heretofore ever had
owned or held against Odmark based upon or arising out of
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matter, cause, fact, thing, act or omission whatever clccu
or existing at any time to and including the date hc areof
of which are hereinafter referred to as and included with
the "Released Matters" ) .
2.4 Except as expressly provided in paragraph 2.6D
below, Odmark does hereby release and absolutely disch.arg
the Grove Parties of and from any and all claims, demands
damages, debts , li abi lit ies , accounts , reckonings , ob1 iga
tions, costs, expenses, liens, actions and causes of acti
of every kind and nature whatever, whether now known or
unknown, suspected or unsuspected, which Odmark now has,
owns, or holds br at any time heretofore ever had, owned 1
held against the Grove Parties based upon or arising out 1
any matter, cause, fact, thing, act or omission whatever
occurring or existing at any time to and including the da.
hereof (all of which are hereinafter referr.od to as and
included within the "Released Matters").
2.5 Without in any way limiting the foregoing, and
except as expressly provided in paragraph 2.6D below, the
of Carlsbad hereby releases, discharges and indemnifies, i
agrees to hold harmless (a) the Grove Parties from eaih ai
all of the obligations of the Grove Parties under the agrc
ments identified on Exhibit 3 hereto as such agreements a]
to the Property, (b) the parties to that certain Agre'e:men-
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regarding payment of a Public Facilities Fee, dated Ju:Ly 1
1985 and recorded August 26, 1985 under File Number 85-30E
and 85-308358, from each and all of the obligations there-
under, and (c) the Grove Parties and Odmark from any and E
claims, losses, or demands of any kind whatsoever arising
of or connected with the condition of the Property previoL
01- hereafter existing, and/or the unsuitability of the
Property for any use, except any claims, losses, or darnage
arising from any negligent acts by the Grove Parties or
Ocimark in connection with the Property.
2.6 The releases contained in this Agreement, and tk:
descriptions of the Released Matters, do not cover and shc
not be deemed to purport to cover:
A. Any of the rights, duties or obligations of
any person not a party hereto under the Revised Gro7.e Judg
0 1:
B. Any of the rights, duties, or obligations o
any person or party (including any party hereto) under the
Revised Grove Judgment or otherwise concerning the real.
property referred to in the Revised Grove Judgment as the
"P4ay Stores Non-Coastal Zone Commercial Parcel" and/or- the
"May Stores Coastal Zone Commercial Parcel"; or
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C. Any of the rights of any person or party
(including any party hereto) under the Revised Grove Judg
concerning sewer capacity (including the right to receive
assign, and/or to transfer the same, and the obligations,
any, to pay for the same), insofar as such rights may be
necessary fully to provide sewer service to the real! prop1
referred to in the Revised Grove Judgment as the "May Sto
Non-Coastal Zone Commercial Parcel'' and/or the "May Store
Coastal Zone Commercial Parcels" (which the parties prese:
believe will involve between and __ E.D.U's); or
D. Any of the rights, duties, or obligations (
the parties referred to in, arising under, or created by .
Restated Agreement which by the terms thereof survive the
Property Close of Escrow.
2.7 It is the intention of the parties in executing
this Agreement, that this Agreement shall be effective as
full and final accord and satisfaction and general mutual
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In f.Jrth<
of this intention, each of the parties acknowledges that :
is familiar with Section 1542 of the Civil Code of t:hfi St;
of California, which provides as follows:
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"A general release does not extend to
claims which the creditor does not know or
suspect to exist in his favor at the time of
executing the release, which if known by him
must have materially affected his settle-
ment with the debtor. "
Each of the parties waives and relinquishes any right or
benefit which it has or may have under Section 1542 of th
Civil Code of the State of California or any similar pro-
vision of the statutory or non-statutory law of any other
jurisdiction to the full extent that it may lawfully waiv
a.11 such rights and benefits pertaining to the subject ma
of this Agreement. In connection with such waiver and.
relinquishment, each of the parties acknowledges that it
aware that it or its attorneys may hereafter discover cla
or facts in addition to or different from those which. it
knows or believes to exist with respect to the subject ma
of this Agreement or the other parties hereto, but th.a.t i
i.ts intention hereby fully, finally, and forever to settl
and release all of the Released Matters, known and ur.k:now
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.8 The parties hereto each warrant and represent t
the other that it is the sole and lawful owner of all rig
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t:ttle and interest in and to all of the respective Re:,<, >as€
Matters and that it has not heretofore, voluntarily, hy
operation of law or otherwise, assigned or transferred or
purported to assign and transfer to any person whomsot =ve r
Released Matter or any part or portion thereof, or any clz
demand or right against the other. Each of the parties sk
indemnify and hold harmless the other from and agains't ani
c.laim, demand, damage, debt, liability, act, reckoning,
obligation, cost, expense, lien, action, or cause of actic
(.including payment of attorneys' fees and costs actually
incurred whether or not litigation be commenced) based on
i:n connection with or arising out of any such assigrmcxnt c
transfer or purported or claimed assignment or transfer.
111.
BENEFICIARIES
3.0 This Agreement is not for the benefit of any pel
who is not a party signatory hereto or specifically named
beneficiary in this paragraph. The provisions of this
Agreement and the releases contained herein shall extend *
and inure to the benefit of, and be binding upon, in addi.
to the parties hereto, just as if they had executed this
Agreement: the respective legal predecessors, successors
assigns of the parties; each and every entity which now i
ever was a parent or subsidiary of Odmark; the respective
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past and present officers, shareholders, officials, direcl
partners, employees, trustees, beneficiaries, and at,torne;
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns,
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herei:
affect the settlement of claims which are denied and dispi
which are contested, and nothing contained herein shall bl
construed as an admission by any party hereto of any
liability of any kind to any other party. Each party
expressly denies that it is in any way liable or indebted
amy other party.
9 4.2 This Agreement, the Restated Agreement, and. the
Eevised Judgment constitute and contain the entire aqreem
and understanding concerning the subject matter between t
parties, set forth all promises and inducements made hy a
party to any other party with respect to any of the e,u.bje
matter, and supersede and replace all prior negotiations,
proposed agreements or agreements, written or oral. E:ach
the parties acknowledges to each of the other partices tha
other party nor any agent or attorney of any other party
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made any promise, representation or warranty whatsoever,
express or implied, written or oral, not contained herein
concerning the subject matter hereof to induce it to execi
this Agreement, and each of the parties acknowledges that
has not executed this Agreement in reliance on any promis
representation or warranty not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiatic
which preceded the execution of this Agreement and that i-
has executed this Agreement with the consent and on the
advice of such independent legal counsel. Each party fur-
acknowledges that it and its counsel have had adequate
opportunity to make whatever investigation or inquiry the:
may deem necessary or desirable in connection with the
subject matter of this instrument prior to the execution
herecf and the delivery and acceptance of the considerati(
specified herein.
4.4 This Agreement and any other documents referred
herein shall in all respects be interpreted, enforced and
governed by and under the laws of the State of California
applicable to instruments, persons and transactions w:hich
have legal contracts and relationships solely within the
State of California. Counsel for all parties have read ai
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1
approved the language of this Agreement. The language of
th.is Agreement shall be construed as a whole according to
fair meaning, and not strictly for or against any of the
parties.
4.5 As used in this Agreement, "persons" includes
natural persons, corporations, partnerships, joint venture
and any other entity.
4.6 Whenever in this Agreement the context so icequir
th.e masculine gender shall be deemed to refer to and in.clu
th.e feminine and neuter, and the singular to refer to and
in.clude the plural.
4.7 This Agreement may be executed in counterparts a
sh.all become effective when all parties have executed and
acknowledged at least one counterpart and counterparts
executed and acknowledged by all parties have been deliver
to counsel for the parties.
4.8 The titles of the various articles of this Agree!
are used for convenience of reference only and are not
intended to and shall not in any way enlarge or diminish t:
rights or obligations of the parties or affect the meaning
construction of this document.
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\.
IN WITNESS WHEREOF, the parties hereto have set: thei.
hands and seals as of the day and year first written abovi
GROVE APARTMENTS INVESTMENT
a partnership
/? _- - y," l+?' ,// */ ~ J By: /?',d-f!-d /, J/ \>-$.,+-'L&''~L __-
--- Its:
H.F.H., LTD.
By :
Its:
---
-_-
HARRY J. L. FRANK, JRY--
BERNARD CITRON TRUST
__- By :
Its: __-
--- FRED A. BARTMAN, JR.
MARITAL TRUST UNDER THE: WIL
WILLIAM S. BARTMAN
__- By :
Its: -_-
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RESIDUARY TRUST UNDER T3E W:
WILLIAM S. BARTMAN
By : ---
Its: ---
ODMARK DEVELOPMENT CO.
a corporation
By: ---
Its: ---
THE CITY OF CARLSBAD
By : ---
Its: ---
APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
By:
Howard J. Rubiiiroit
Attorneys for Grove Apartments
Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman,
Jr.; Marital Trust under the
Will of William S. Bartman,
Residuary Trust under the Will of William S. Bartman
Vincent Biondo, Jr.
City Attorney, City of Carlsbad
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PETERSON, THELAN & PRICE
By:
John Thelan, Esq.
Attorneys for Odmark
Development Co.
HJR187A
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L
ASSIGNMENT OF ODMARK RIGHTS
Gk c % J*
hw
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61
PEW f TTED EXCEPT IONS
(a) that certain Preliminary Title Report issued by First Amcer;icar Title Insurance Company, dated as of June 12, 1986 (Order
No. 900394-2); and,
Exceptions numbered 1 through 11 and 15 as disclcsed :in
(b) Exceptions numbered 1 through 9 as disclosed in that certain Preliminary Title Report issued by First American
Title Insurance Company, dated as of June 12, 1986 (Order
No. 925612-1).
KG& D *k
kW-Frnb&
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**
. EXHIEIT E
RELEASED AGREWSSTS
1. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 278 1981, executed by the City 0
Carlsbad and Grove Apartments Investment Company, recorded
January 30, 1981 as File No. 81-030961 of Official Reccrds.
2. A Contxact for the Creation of a Lien for Payment for P’ubllc
Improvements, dated January 27, 1981, execute2 by the City
of Carl-sbad and Grove Apartments Investment Co. 0 record&
February 10, 1981 as File No. 81-041815 of Official Records.
3. A Contract for the Creation of a Lien for Payment for Public
Improvements, dated January 27, 1981, executed by the City of Carlsbac! and Grove Apartments Investment Co. t recorded
February 17, 1981 as File no. 81-048012 Of Official Records.
$i
lablLed (aw -&&A hw. J
t;, !KkAE
c e e
'1
e EXHXBIi E-1
ASSt'F'XD AGFIE?'ENTS
An Agreement regarding proposed roadways, dated October 2
1977, upon the terms, covenants and conditions contained therein.
EXECUTED BY A?:D BETn'CEN: GROVE APARTHENTS Ih?ZSTk!El;T Co.
KArAR COKSTRUCTIOX CO.
RECORDED: Earch 20, 1978 as File No. 78-108597 of 0ff1.cl
Records.
Modification of the 1977 Agreement between azjacent land
owners, dated October 26, 1977, executed upcr. the tern.!;,
covenants and conditions contained therein, recorded
October 16, 1978 as File No. 78-440517 of Official Record,
A Second Rodzfication to 1977 Agreement between adjacent :
owners, dated November 3, 1982, executed upon the terms,
covenants and conditions contained therein, recorded November 24, 1982 as File No. 82-363510 of Official ReCOI'C
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VESTING
I.?.8, LTD.8 a limited prrtnerrhip, 18 to an undivided oarthird (1/3) intt
CZCILL CITRON uR'T)(Aw, 88 hurtec of the Trurt rrtrblirhcd under the! Yi - CITOnON, deCCIICd, 88 to an undivided ooc-aixth (l/6) faterert,; BAlt; L. W, JR., a married un a# hi8 801c and rcprrrte property, a8 t
undivided ocrt-aixtb (1/6) ioterert; ?RZD A* BART", JR., a urrled aun ai mole #ad mpirrte property, 80 to an undivided onerlxth (1/6) intertot;; ?R BARRulo, Jp., RORM B. BABRUIO, TEOIUS ?RED BARR(AH and UILLUn (E. ULR;RW,
a0 trurteer under the Writ81 hurt ertrblirhed ondtr tht Vi11 of ZllLLIr urn, daceartd, 81 to 80 orrdiridtd oactrclftb (lfi2) fnttrert; ?RE
a8 Trurteer under the Berldu.1 frurt ertrbllrhcd under tbe Will of WIUU urn, dtcc8red, 8a to an undivided one-tvclfth (1/12) interart
MRW, JR.8 ROW B* BAR'MAR, tH0W ?RED BARW rod WILLIAn lie BASbUlrJ,
6Lhk Fdi J* d&wn.
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COLLINS RELEASE
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AGREEMENT FOR SETTLEMENT OF DISPUTES
AND MUTUAL RELEASES
day
May, 1987, by and between Grove Apartments Investment CO.
("'Grove''), H.F.H. , Ltd. ("H.F.H."), Harry J. L. Frank, Jr.
( "'Frank"), the Bernard Citron Trust ( "Citron Trust") , Fred
Bartman, Jr. ("Bartman") , the Marital Trust under the Will
W:illiam S. Bartman ("Marital Trust"), the Residuary Ticust
Under the Will of William S. Bartman ("Residuary Trus:;"') (
o:f the foregoing hereinafter sometimes referred to co:l:lect
as the "Grove Parties"), Collins Development Corpora.t:ion
("Collins") , and the City of Carlsbad ("Carlsbad") .
THIS AGREEMENT is made and entered into this --
I
FACTUAL RECITALS
1.0 This Agreement is entered into with referenlze tc
the following facts:
1.1 Grove is and/or previously was the record owner
a portion of certain real property located in the County (
San Diego (the "Grove Parcel").
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1.2 For purposes of development, the Grove Parcel. wa
divided into sub-parcels A, B, C, D, and E, all as ref1,ect
on. the Master Plan of Development, approved by Car1sba.d on
about March 3, 1970.
1.3 Grove Sub-parcels B and C have already beein cleve
loped. Sub-parcels D and E have the following acreage, wh
Grove previously intended to develop with residential unit
as follows:
D 16.085 acres 130 units
E 27.675 acres 240 units
1.4 The partners of Grove and HFH, Ltd. are the reco
owners of certain real property located in the Count:y of S
Diego ( "Parcel F" ) .
1.5 In order to develop and/or cause the development
Parcels D, E, and F, Grove entered into an agreement wi.th
Octmark Development Company ("Odmark"), which, as froin time
time amended (the "Odmark Agreement"), provided for .the sa
to Odmark of Parcels D and E, Parcel E being compris,ed of
sub-parcels E and E Prime. All of Odmark's right, title, a
interest in, to and under the Odmark Agreement are hereina
referred to as the "Odmark Rights."
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1.6 Odmark has assigned certain of the Odmark 13iqhts
Collins, and Collins has or claims to have certain r:iqhts
cl-aims against the Grove Parties and Carlsbad in con:ne!c:tio
with the Property, the Odmark Agreement, and/or the (3chark
Rights, all of which rights or claims are herein-
after referred to as the "Collins Rights".
1.7 AS of July 10, 1986, Grove, H.F.H. , various of
principals of each, and City entered into an Agreement: fox
Purchase and Sale of Real Property, pursuant to which, on
November 4, 1986 a ballot measure was submitted to the vot
of Carlsbad regarding, among other things, the acquisitior
the Property by the City. Such ballot measure received
s:lightly less than the 2/3 affirmative vote required and b
not approved.
1.8 Thereafter Carlsbad determined to acquire the
Property in lieu and/or under threat of condemnation, and
purchase and have assigned to it the Odmark Rights (incluc
the Collins rights), provided it obtained the requisite v<
of the registered voters within Carlsbad authorizing lor
approving such acquisition.
1.9 Carlsbad caused a ballot measure ("Acquisition
Ballot Measure") to be submitted to the voters of the Citj
a special election held on March 3, 1987, which Acquisitic
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Ballot Measure was approved, and which authorized Ca:rl.sbad
ac:quire the Property and the Odmark Rights for cash.
1.10 Odmark, Collins and certain of the Grove Partie
have filed an action in the San Diego Superior Court, enti
- Odmark Developrrient Company, et al. v. City of Carlsbad, __- et
which is Civil Action No. N 36215 in said Court (herei.n-
after Civil Act:.ion No. 36215).
1.11 As of May - , 1987, Grove, H.F.H. , various of t
principals of each, Odmark, and Carlsbad entered into an
Amended and Restated Agreement for Purchase and Sale of Re
Property (the "Restated Agreement").
1.12 It is now the desire and intention of the Grove
Parties, Collins, and Carlsbad to compromise and resol-ve B
of the disagreements and disputes which exist or may exist
between them arising out of the foregoing, including those
which caused the filing of Civil Action No. N 36215, and
a:Lso to resolve certain other matters. Pursuant to and in
accordance with this desire, and in consideration of the
promises and releases contained herein, the parties agree
f 0 1 lows :
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DISMISSAL OF LITIGATION AND RELEASES
2.0 Collins and those of the Grove Parties who are
plaintiffs therein hereby agree to file a Request for
Dismissal with Prejudice of Civil Action No. N 36215, eacl
party to bear .its own costs.
2.1 Collins does hereby release and absolutely disc:
the Carlsbad a:nd the Grove Parties, and each and all of t:
of and from any and all claims, demands, damages, debts,
liabilities, accounts , reckonings, obligations , costs ,
expenses, liens, actions and causes of action of every ki
a.nd nature whatever, whether now known or unknown, Suspec
or unsuspected,, which Collins now has, owns, or holds or
any time heretofore ever had, owned or held against Carls
and/or the Gro’ve Parties based upon or arising out of any
matter, cause, fact, thing, act or omission whatever occu
or existing at any time to and including the date hereof
c:onnection with their ownership of and/or rights and/or
attempts to develop Parcels D, E, and F including, lx~t: no
limited to, tke Odmark Rights and the Collins Rights (all
which are hereinafter referred to as and included within
“Released Matt.ers” ) .
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2.2 Carhbad and the Grove Parties, and each and al:
them, do hereb:y release and absolutely discharge Col.lins (
and from any a:nd all claims, demands, damages, debts, lial
lities, accounts, reckonings, obligations, costs, expense:
liens, actions and causes of action of every kind arid nati
whatever, whether now known or unknown, suspected or unsu,
pected, which the Carlsbad and/or the Grove Parties now h8
own, or hold, or at any time heretofore ever had, owned o
h.eld against Collins based upon or arising out of any mat
cause, fact, thing, act or omission whatever occurring or
existing at any time to and including the date hereof in
connection with the ownership of and/or rights and/or
a.ttempts to develop Parcels D, E, and F, including, bu.t n
1.imited to, th.e Odmark Rights and the Collins Right:s (all
which are hereinafter referred to as and included within
"'Released Matters" ) .
2.4 It is the intention of the parties in execu.t:ing
this Agreement:., that this Agreement shall be effective as
full and final. accord and satisfaction and general mut:ual
release of and from all Released Matters, except only as
otherwise expressly provided in this Agreement. In f:urth
ance of this intention, each of the parties acknowledges
it is familiar. with Section 1542 of the Civil Code of: the
State of California, which provides as follows:
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"A general release does not extend to (:.lain
which the creditor does not know or suspect to
exis.': in his favor at the time of executing the
release, which if known by him must have rciateriz
affected his settlement with the debtor."
Each of the parties waives and relinquishes any right or
benefit which :it has or may have under Section 1542 of thc
Civil Code of .the State of California or any similar prov:
sion of the sttatutory or non-statutory law of any other
jurisdiction tI3 the full extent that it may lawfully waivc
all such rights and benefits pertaining to the subject ma'
of this Agreement. In connection with such waiver and
relinquishment, each of the parties acknowledges that it
aware that it or its attorneys may hereafter discover cla
or facts in addition to or different from those which it :
knows or believes to exist with respect to the subject ma
csf this Agreement or the other parties hereto, but that i
its intention hereby fully, finally, and forever to settl
amd release all of the Released Matters, known and un.k:now
suspected or unsuspected, which now exist, may exist, or
heretofore have existed, between them.
2.5 The parties hereto each warrant and repre:sent t
the other that:. it is the sole and lawful owner of all. rig
title and interest in and to all of the respective :Releas
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Matters and th,at it has not heretofore, voluntarily, :by
operation of law or otherwise, assigned or transferreld or
purported to assign and transfer to any person whomsoe,ver
Released Matter or any part or portion thereof, or any Cli
demand or right against the other. Each of the parties SI
indemnify and :hold harmless the other from and against an:
claim, demand, damage, debt, liability, act, reckoning, 01
gation, cost, expense, lien, action, or cause of action
(including payment of attorneys' fees and costs actually
incurred whether or not litigation be commenced) based on
in connection with or arising out of any such assignment
transfer or purported or claimed assignment or transfer.
111.
BENEFICIARIES
3.0 This AQreement is not for the benefit of i3R.Y pe
who is not a party signatory hereto or specifically named
beneficiary in. this paragraph. The provisions of this
Agreement and the releases contained herein shall ext-end
and inure to the benefit of, and be binding upon, i:n stddi
to the parties hereto, just as if they had executed this
Agreement: the respective legal predecessors, SUCCeE;:jors
assigns of the parties; each and every entity which now i
ever was a parent or subsidiary of Collins; the respectiv
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past and present officers, shareholders, officials, direct
partners, employees, trustees, beneficiaries, and attorney
of the parties and/or of each such parent or subsidiary
entity, and their respective legal successors and assigns;
and each of the foregoing.
IV.
GENERAL
4.1 This Agreement and the releases contained herein
affect the settlement of claims which are denied and dispu
which are contested, and nothing contained herein shall be
construed as an admission by any party hereto of any liabi
of any kind to any other party. Each party expressly deni
that it is in any way liable or indebted to any other part
4.2 This Agreement constitutes and contains the enti
agreement and understanding concerning the subject matter
between the parties, set forth all promises and inducement
made by any party to any other party with respect to any o
th.e subject matter, and supersede and replace all prior
negotiations, proposed agreements or agreements, written o
oral. Each of the parties acknowledges to each of the 0th
pa,rties that no other party nor any agent or attorney of a
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other party ha:; made any promise, representation or wia:rrar
w:hatsoever, express or implied, written or oral, not. conti
herein concerning the subject matter hereof to induce :it t
execute this Agreement, and each of the parties acknowled?
Chat it has no", executed this Agreement in reliance o:n an]
promise , repre:;entation or warranty not contained herein.
4.3 Each party acknowledges to each of the other
parties that it has been represented by independent legal
counsel of his own choice throughout all of the negotiati(
which preceded the execution of this Agreement and that i.
h.as executed Chis Agreement with the consent and on the
advice of such independent legal counsel. Each party fur
a,cknowledges that it and its counsel have had adequate
clpportunity to make whatever investigation or inquiry the
may deem necessary or desirable in connection with the
subject matter of this instrument prior to the execution
hereof and the delivery and acceptance of the considerati
specified herein -
4.4 This. Agreement and any other documents re.ferred
herein shall i.n all respects be interpreted, enforcled and
governed by ar:td under the laws of the State of California
applicable to instruments , persons and transactions which
have legal contracts and relationships solely within the
State of California. Counsel for all parties have read a
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approved the 1a.nguage of this Agreement. The language of
this Agreement shall be construed as a whole according to
fair meaning, a.nd not strictly for or against any of thh;e
parties.
4.5 As used in this Agreement, "persons" includes
natural persons , corporations, partnerships, joint vlenture
and any other entity.
4.6 Whenever in this Agreement the context so raquir
the masculine qender shall be deemed to refer to and i.nclu
the feminine arid neuter, and the singular to refer to and
include the plural.
4.7 This Agreement may be executed in counterparts ti
shall become effective when all parties have executed and
acknowledged ai: least one counterpart and counterparts
executed and acknowledged by all parties have been de:tiver
to counsel for the parties.
4.8 The .titles of the various articles of this
Agreement are used for convenience of reference only and i
not intended to and shall not in any way enlarge or diminl
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the rights or obligations of the parties or affect the
meaning or construction of this document.
IN WITNESS WHEREOF, the parties hereto have set i:lieii
hands and seal:; as of the day and year first written iA2OV€
GROVE APARTMENTS INVESTIYENT
a partnership
--- By:
Its: __-
H.F.H., LTD.
__- By :
Its: __-
__- HARRY J. L. FRANK, JR.
BERNARD CITRON TRUST
--- By :
Its: ---
--- FRED A. BARTNAN, JR.
MARITAL TRUST UNDER THE WIL
WILLIAM S. BARTMAN
__- By :
Its: ---
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RESIDUARY TRUST UNDER 'THE; WI
OF WILLIAM S. BARTMAN
-_- By :
Its: ---
COLLINS DEVELOPMENT CORI?ORAT
a corporation
-_- By :
Its: -_-
THE CITY OF CARLSBAD
--- By :
Its: -_-
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APPROVED AS TO FORM AND CONTENT:
SIDLEY & AUSTIN
B;q :
Howard J. Rubinroit
Attorneys for Grove Apartments
Investment Co.; H.F.H., Ltd.;
Harry J. L. Frank, Jr.; Bernard
Citron Trust; Fred D. Bartman,
Jr. ; Marital Trust under the.
Will of William S. Bartman,
Residuazy Trust under the Will
of William S. Bartman
- Vincent Biondo, Jr.
City Attorney, City of Carlsbad
By :
Attorneys for Collins Development
Corporation
E1 JR 1 8 7 C
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