HomeMy WebLinkAboutPlaza Camino Real / Parking Authority; 1978-11-22;\ * q ,' 4.
SEC ON D E X C 11 A NG E AG I? E E ME NT AN D E S C ROW I N ST R U CT IO ti - S
To: Title Insurance and Trust Cornpapy
This instrument constitutes an agreement between the CITY OF
CARLSBAD (''Citytt), the PARKING AUTHORITY OF THE CITY OF CARLSBAD
(Itparking Authority") I and PLAZA CAMINO REAL, (ttDevelopertt) , reg:
the exchange of certain real property in the City of Carlsbad, St
of California, ar,d further constitutes escrcw instructions to Tit
Insurar?ce and Trust Company ('tE~cr~~ Holdertt) in respect of said
exchange. This instrurneRt is hereinafter referred to as "this E:
Agreenent11. Escrow Holder need not be concerned with matters of
agreement among City, Parkirjg Authority, and Developer, except a:
specifically provided in this Escrow Agreement.
?'his Escrow Agreement is entered iito with referer,ce to the
followiRg facts and circumstances:
A. Pursuant, to that certain Agreemer!t, ciated November 5, 1
as amended, by and between City, Parking Authority and Developer
I1Exyansion Agreementtt) , Parking Authority and Developer have agr
to exchange with one another the real property now osJned by Park
Authority descri.bed in Exhibit A attached hereto and made a part
hereof by reference ("Exchange Parcel XT'> which property is a ft
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improved parking lot consisting of 87 parking spaces, for the rea
property now owned by Developer described in Exhibit B aLtached h
and made a pa;t hereof by reference (l'Exchange Parcel Y") which p
is unimproved.
B. Immediately after the receipt of said conveyance from P;
ing Authority, Developer ir,tends to convey Exchange Parcel X to
Carter Hawley Hale Stores, IRC. (l'carter"). Developer and Cartel
have entered into a separate escrow with Escrow Holder (the "Carl
Escrow11) through which the latter conveyance will be accomplishes
C. Developer shall improve Exchacge Parcel Y for parking
purposes acd shall complete the same not later than the completi
of the flew public parking area pursuafit to the Expansior. Agreeme
Exchange Parcel Y shall be improved by Developer in the same man
as Exchange Parcel X and shall be of at least equal value and
utility for parking purposes as Exchange Parcel X. The details
such improvements shall be ir, accordance with the Precise Plar! a
Development approved by the City pursuafit to the ExpaRsion Agree
which Precise Plan, as approved, is herdby incorporated herein I-
reference.
D. Developer will pay all costs arising in this escrow an(
in addition, will pay the fees of City and Parking Authority's
outside legal cour!sel for their services in the negotiation and
drafting of this Escrow Agreement.
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NOW, THEREFORE, the parties agree as follows:
1. Subject to the specific provi.sions herein, Parking Authi
will convey Exchange Parcel X to Developer and Developer will co
Exchange Parcel Y to Authority, Developer shall improve Exchang
Parcel Y for parking purposes and shall complete the same not la
than the completion of the new public parking area pursuant to t
Expansion Agreement. Exchange Parcel Y shall be improved by the
Developer in the same manner as Exchange Parcel X and shall be o
least equal value apd utility for parking purposes as Exchange
Parcel X. The details of such improvement shall be in accordanc
with the Precise Plan of Developmefit approved by the City pursua
to the Expansion Agreement, which Precise Plan of Development, a
approved, is hereby incorporated herein by referepee as though s
forth in full.
The May Stores Shopping Centers, Inc., the General Partner
the Limited Partnership cocstituting Developer shall execute a
guaracty of Geveloper's obligations under this paragraph 1 in th
form attached hereto as Exhibit G and made a part hereof by refe
and shall furnish the bond required pursuant to said guaranty.
Any and all expenses and costs ir,curred in connection w$th
Exchange Agreement or the implenientation hereof shall be borne b
the Developer. I
2. On or before 12:OO noon of the day preceding the closin
date, City and Parking Authority shall hand to Escrow Holder:
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(a) A deed executed by Parking Authority to Developer
covering Exchange Parcel X, in the forn! attached hereto as
Exhibit C and made a part hereof by reference (the !'Parcel
X Deed") ;
(b) Such resolution and/or other evidence of authority
as may reasonably be required to satisfy Escrow Holder
pursuant to subparagraph (c) of Paragraph t! that the Parcel
X Deed will convey insurable fee title to ExchaRge Parcel
X to Developer;
(c) Such written acceptance of the Parcel Y Deed, as
hereinafter defined, as may be necessary to permit the
recording thereof;
(d) One counterpart of a fully executed amendment to
that certain Lease Agreeitie:!i;, dated Asgust 2i, 1969, as
mended, between Parking Authority and City, in the form
attached hereto as Exhibit D and made a part hereof by
reference (the !'Lease Amendment") .
(e> Any other documents required to el?able the Escrow
Holder to comply with those instructions.
3. On or before 12:OO noon on the day preceding the closir
date, Developer shall har,d to Escrow Holder:
(a) A deed executed by Developer to Parking Authority
covering Exchange Parcel Y in the form attached hereto as
Exhibit E and made a part hereof by reference (the ltParcel
Y Deed");
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(b) The fully executed guaranty and bond required
pursuant to Paragraph 1 of this Escrow AgreemeRt;
(c> Any other docurnents or funds required to enable
the Escrcw Holder to comply with this escrow'^ Agreement.
4, On or before 12:OO noon of the day preceding the closinE
date, City, Parking Authority and Developer shall hand to Escrow
Holder three (3) counterparts of a fully-executed amendment to
the Plaza Camino Real Public Parking Lot Operating Agreement,
dated Noveraber 4, 1969, as amended, by and between City, Parking
Authority and Developer, in the form attached hereto as Exhibit
and made a part hereof by reference (the "Operaticg Agreemept
Aniendrne~t~~) .
5. The closing date shall occur as soon as practical after
the fulfillnient of the conditions set forth in Paragraph 6. If
escrow shall not have closed by December 31, 1979, then at any t
thereafter, either Developer or Parking Authority may terminate
this Escrow Agreement by written notice to the other and to Escr
Holder, unless the escrow shall have closed prior to the giving
such notice. In the event of such termination, Escrow Holder is
instructed to return forthwith funds and documents to the re-
spective parties depositing the same. Upon such termination
Developer shall pay for all itenis required to be paid by Devel-
oper pursuant to Paragraph 10 hereof.
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6. The close of escrow is subject to the following condi
(a) That the Carter Escrow will be ir, a position to
be closed concurrently with the close of this Escrow Agre
(b) That Escrow Holder will be able to issue at
Developer's expense a standard form CLTA policy of title
insurance naming Parking Authority as insured with liabil
to $47,024.00 showing title to Exchange Parcel Y vested i
Parking Authority sgbject only to:
(i) The usual printed exceptions in such form
po 1 i c y. ;
(i j 1 Convefiants; ccnditicfis: restrictior!s, easf
ments and reservations of record as set forth in
Exhibit H attached hereto.;
(ii!) The matters set forth in the Parcel Y Dee(
(iv) Liens for taxes and any special assessmen
collected as taxes which arb not yet payable. .
(c) That Escrow Holder shall be satisfied that the
Parcel- X Deed will convey insurable fee title in Exchang
Parcel X to Developer, subject only to:
(i) The usual printed exceptions to a standar
form CLTA policy of title insurance;
,
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(ii) Covenants, conditions, restrictions, ease-
ments, and reservations of record, as shown in Exhibit
attached hereto j
(iii) The matters set forth in the Parcel X Deed.
No title policy will be issued to Developer in this escrow.
However, a title policy will be issued to Carter ir! the Carter
Escrow.
7. Subject to each party fulfilling its obligations under
Paragraph 2, 3 and 4, no party guarzntees that the conditi0r.s to
the close of escrow will be fulfilled.
8. Upon the close of escrow, Escrow Holder is authorized
and instructed to:
i (a) Record the Parcel X Deed- and the Parcel Y Deed,
with instructions to the Recorder to return the Parcel X
Deed to Developer and the Parcel Y Deed to Parking Authorit
(b) Deliver to City and Parking Authority two (2) of
the counterparts of the Operating Agreement Amendment and t
aforementioned guaranty and bond; and
(c) Deliver to Developer one counterpart of the Leas<
Aniendnient and one counterpart of the Operating Agreement
Amendment.
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9. All taxes and any special assessments collected as tave:
affecting Exchange Parcel Y which are payable shall be paid by
Developer prior to the close of escrow. Any such taxes and asse:
rnents which are a lien but are Rot yet payable as of the close o
escrow shall be paid by Developer promptly after they become pay;
City and Parking Authority shall cooperate and assist Developer
attempting to secure the cancellation of taxes on Exchange Parce
effective as of the close of escrow so that Developer may obtain
refund of any taxes paid by Developer on Exchange Parcel Y for a
period subsequent to the close of escrow.
10. Other provisions to the contrary notwithstacding it is
understooG and agreed thgt the charges for any title policy, doc
mentary transfer tax, escrow fees acd other charges in this escr
shall be borce by Developer. Developer shall also pay the fees
City z,nd Parking Authority's outside legal counsel for their seb
in the negotiation and drafting of this Escrow Agreement. Each
party shall bear its own attorneys' fees and other enforcement
costs in respect of any claimed breach df this Escrow Agreement,
subject to Paragraph 14 hereof.
11. No right is granted to Developer by this Escrow Agreemi
to enter Exchange Parcel X for purposes of grading or developme
or pre-development activities until the close of escrow. The
preceding sentence shall not be construed to affect any rights
Developer may have under any other instrument.
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-12. All funds received in this escrow shall be deposited in
one or more general escrow accounts of Escrow Holder with any bai
doing business in the State of California and inay be transferred
to any other general escrow account or accounts. All disburseme
shall be made by Escrow Holder's check. Escrow Holder is author
to record any iRstruments delivered through escrow which are nec
sary or proper for the issuance of the title policies called for
this Escrow Agreement.
13. This Escrow Agreement and the Expansion Agreement conta
the entire agreement of the parties in respect of the exchange o
Exchange Parcels X and Y, and all negotiations and agreements
between the parties hereto or their agents with respect to said
exchange are merged ir: this Escrow Agreemept and Expansion Agree
ment, which alor,e express the parties' rights and obligations wi
respeck thereto. The obligaticns of Developer under Paragraphs
and 9 and City and Parkicg Authority under Paragraph 9 hereof sh
survive the consummation of this transaction and the delivery
of the deeds, and shall continue in full' force and effect and
be binding upon and inure to the benefit of Developer, City, and
Parking Authority, respectively, and their respective successors
and assigns under the Expar,sion Agreement
,
14, In the event of any litigation arising out of the subje
matter of this Escrow Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs.
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15. Time is of the essence of this Escrow Agreement. The
term "close of escrow9t, as used herein, means the date the in-
struments herein referred to are recorded. The term t9closing
date", as used herein, means the scheduled date for close of
escrow. If the close of escrow shall not have occurred on the
closing date, Escrow Ijolder shall close this escrow as soon
after the closing date as possible, unless this Escrow Agreement
is terninated pursuant to Paragraph 5 hereof.
16. This Escrow Agreement shall not be amended in any mannc
ur?less such amendment is sigced by a11 of the parties hereto, or
their- authorized agents, and Escrow Holder is instructed not to
accept any such amendments unless so executed.
17. In the event the date by which the parties9 performance
and due herein shall be other than a regular business dJy, such
performance shall be due on the next precedipg regular business
day.
Dated as of November 22 9 1978
ATTCST CITY OF CARLSBAD
By: >R# r &-4?r&z-
Ronald C. Packard, Mayor 1 erk
{Signatures continued on the following page}
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PARKING AUTHORITY OF TIIE CITY 0 ATTEST CARLSBAD
By :
PLAZA CAMIfdO REAL, a California 1 imi ted partnership
ctvwrb XN 6~ T
The ebcrow instructions embodied in the above Exchange Agreement Escrow Instruction; are hereby accepted.
TITLE INSURANCE AND TRUST COMPANY
By :
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LEGAL DESCRIPTION OF EXCHANGE PARCEL X
The real property in the State of California, County of Sa
Diego, City of Carlsbad, more particularly described as follow:
Lot 19 of Carlsbad Tract 76-18 according to
Map No. 8956 filed in the Office of the
County Recorder of said Coucty on August 11, 1978
b
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LEGAL DESCRIPTIOtI OF EXCHANGE PARCEL Y
The real property in the State of California, County of S
Diego, City of Carlsbad, more particularly described as follow
Lot 26 Carlsbad Tract 76-18 according to Map No. 8956 filed in the Office of the County
Recorder of said County on August 11, 1978
I
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R EC 011 D I N G l< E UU E ST E D l3 Y
AND WllEN HECORDED MAIL TO:
Plaza Caniino Real
c/o The Play :;ores Shopping Centers, Inc. 10738 West Pic0 Boulevard, Suite 1
Los Angeles, California 90064 Attention: Herbert L. Roth
GRANT DEED
(Exchange Parcel X)
-
The undersigned, 1 he PARKING AUTHORITY OF THE CITY OF CARLS
a public body corporate and politic, organized and existing upde
Laws of the State of California ("Grantor"), hereby grar?ts to PL
CAMINO REAL, a limited partnership, organized and existing under
laws of the State of California, the general partner of which is
May Stores Shopping Cepters) Inc. (ttGranteell) the follo\.ring desc
real property in the State of California, County of San Diego, C
of Carlsbad, niorc particularly described as follows:
Lot 19 of Carlsbad Tract 76-18 acco-ding to Map No. 8956 filed ir, the Office of the County Recorder of said County on August 11, 1978.
A. The conveyance hereby made is subject to the easements,
rights-of-way, conditions, covenants, restrictions, reservations
and similar matters of record on the date of delivery of this Gr
Deed to Grantee.
B. The conveyance hereby made is also subject to the follo
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Grantor has granted the real property conveyed hereby to
Grantee with the understanding that Grantee will convey said rea
property to Carter Hawley Hale Stores, Inc. ('!Carterf1) and that
Carter will commence construction of a department store building
thereon by December 1, 1981. If Carter has not cornmeficed constr
tion of a department store building thereon pursuafit to a buildi
permit issued by the City of Carlsbad on or before December 1,
1981, Grantor or its successors or assigns may give written noti
of suck fact to Carter or its siiccessor~ or assigns, and if such
construction is not so commenced within sixty (60) days after th
giving of such written notice, Grantor shall have the right inimc
ately to terminate the estate herein granted for condition broke
reen?-,er-:vz t.he 7 i;qd cor??vc.ypc! hereby p~irsu-?nt tn Califnrrsz Civi._l
Code Section 1109 or any successor statute; provided, however,
said reentry shall not occur unless said notice is given not lat
than December 1, 1982. In such evect, automatically anci sitnulta
neously with the occurrence of the reentry, without it being
necessary for Grantor or its successors or assigns to take any
affirmative action to effect such result, the real property con\
hereby shall become subject to all of the covenacts, conditidns
restrictions, and other provisions of that certain grant deed, t
October 21, 1909, from Grantee to Grantor, recorded on said datt
the Official Records of the San Diego County Recorder as Docume!
No. 193480, as amended by an instrument recorded August 15, 1971
as Document No, 78-346341 entitled lfAmendtnent of Deed Covenants
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Conditions, Restrictions and Reservations; Subordination Agree[
and Parking Easements" executed by ;rantor, Grantee and others
deed, as amended, being hereinafter referred to as the "Origin
Grant Deed"). Such reentry shall be the sole remedy of Granto:
its successors and assigns if such construction is not so comm
For the purposes of this deed, commencement of constructii
shall be deemed to have occurred upon the commencement of pour
concrete footir,gs for said department store building.
In the event such construction shall have so commenced on
before December 1, 1961, or on or before the expiration of the
aforementioned sixty (60) day period, or in the event the afor
mentioned notice is not given on or before December 1, 1982, t
for the purpose of corroborating that the real property convey
hereby has been released from the right; of reentry cor,tained I
deed, Grantor, or its successors or assigfis, shall execute anc
deliver in recordable form to Carter, or its successors or as:
an instrument in form satisfactory to Carter, or its successoi
assigns, confirming such release. In the event the reentry SI
have occurred, then Carter or its sucCIessors or assigns shall
execute and deliver in recordable form to Grantor or its succf
or assigns a grant deed covering the real property conveyed ht
containing all of the covenants, conditions, restrictions and
provisions of the Original Grant Deed, and Grantor, or its su
or assigt?s shall accept such grant deed and cause it to be re
in the Official Records of the San Diego County Recorder. Fu
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in the event the reentry shall have occurred, Grantor or its suc
or assigns shall cause that; Lease AgreeKent, dated August 21, 19
as amended, between Grantor and the City of Carlsbad, California
be amended to provide for the inclusion of the real property con
hereby in the Site covered by said Lease Agreement.
The addresses of Crantor and its successors and assigns and
Carter and its successors and assigns for all purposes hereunder
are as follows, provided that GraRtor or its successors or assig
and Carter or its successors cr assigr,s may each change its addl
for such purposes by written notice to the other:
Grafitor : Parking Authority of the City of Carlsbad
1200 Elm Avenue
Carlsbad i Califcrnia 92C08
Attention: CiLy Clerk
Carter: Carter Hawley Hale Stores, Inc.
550 South Flower Street
Los Angeles, Califcrnia 90071
Attention: Vice PresideRt Heal Estate-!,egal
Notices shall be deemed given upon personal delivery to an (
of Grantor or its successors or assigns, or Carter or its succe8
or assigns, as the case may be, or upon a date the satlie is deli
or delivery was attempted by registered or certified United Sta
inail properly addressed as aforesaid , postage prepaid, as shown
return receipt.
The provisions of this deed shall be binding upon and inur
to the benefit of the respective successors and assigns of Cran
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and Grantee, including, but not limited to, Carter.
Dated :
PARKING AUTHORITY OF THE CITY OF
BY
BY
I
(Add acknowl edgemen t s)
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SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND ANENDMENT TO LEASE AGREEMENT is made as of the
day of , 1978, by and between the PARKING
AUTHORITY OF THE CITY OF CARLSBAD (TIAuthority"), a public body
corporate and politic, organized and existing under the laws of
State of California, and the CITY OF CARLSBAD (TtCityt'), a munici
corporation of the Stat.e of California, with rei'erence to the
following:
A. Authority and City are parties to a Lease Agreement,
dated August 21, 1969 as amended by an amendment thereto dated
August 3, 1978, (the "Lease Agreementn), whereby Authority lease
to City cerLain land in the City of Carlsbad, California, irnprov
for parking purposes. The land so leased to City included the
property described in Exhibit A attached hereto and made a part
hereof by reference ("Exchange Parcel X!').
B. Authority and City have entered inio a certain Second
Exchange Agreement and Escrow Instructions, dated
, with Plaza Carnino Real, a limited partnership, where
Authority will exchange Exchange Parcel X, including the impr"ovc
ments thereon, for the land owned by Plaza Camino Real described
Exhibit B attached hereto and made a part hereof by reference
("Exchange Parcel Y"). Pursuant to said Second Exchange Agreeme
and Escrow Instructions, Plaza Camino Real has agreed that it SI
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subsequent to the exchange, improve Exchange Parcel Y for parkinl
purposes on the terms and conditions ?et forth therein.
C. Authority and City desire by this Amendment to release
Exchange Parcel X from the Lease Agreement and to bring within tl
terms of the Lease Agreement Exchange Parcel Y, effective upon tl
recording of the deeds pursuant to which Exchange Parcel X shall
conveyed to Plaza Carnino Real and ExchaRge Parcel Y shall be con.
to Authority.
D. Authority and City have determined that Exchange Parcel
greater in acreage t,hat Exchange Parcel X and is of at least equ
value and utility for parking purposes as Exchange Parcel X.
E. Exchange Parcel X has been conveyed to Plaza Camino Rea
subject to a right of reer,try. Exchange Parcel Y has been conve
to Authority subject to a corresponding right of reentry exercis
in the event the right of reentry for Exchange Parcel X is exerc
Authority and City desire that Exchar?ge Parcel X shall automatic
be brought within the terms of the Lease Agreement if reentry of
Exchange Parcel X occurs and that Exchange Parcel Y shall automa
cally be released from the Lease Agreement if reentry of Exchang
Parcel Y occurs.
NOW, THEREFORE, Authority and City agree as follows:
1, Authority and City hereby release from the Lease Agreen
Exchange Parcel X, including the improvements thereon, and Authc
hereby leases to City and City hereby leases from Authority, as
part of the property leased by Authority to City pursuant to thc
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Agreement, Exchange Parcel Y, incl.udipg tlie i~provernents to be c
structed thereon by Plaza Camino Real, as set forth in the afore
mentioned Second Exchange Agreement and Escrow Instructions, thi
amendment, said release, and said leasing to be effective upon t
recordation of the deeds whereby Exchange Parcel X is conveyed t
Plaza Camino Real and Exchange Parcel Y is conveyed to Authority
2. If reentry of Exchange Parcel X uccurs pursuant to the
right of reentry contained in the deed of Exchange Parcel X to P
Caniino Real, then, in that; ever?;, autoinatically and without the
necessity of any further action by any person, the property leas
by Authority to City pursuant to the Lease AgreemeRt shall inclu
Exchange Parcel X, including the improvements thereon. If reent
of Exchange Parcel k' occ::rs pursuar:t to the corresponding i-igiit
reentry contained in the deed of Exchange Parcel Y to Authority,
then, in that event, automatically and without the fiecessity of
further acti.on by any person, Exchange Parcel Y, including the
improvements thereon, shall be released from the Lease Agreement
3. Except as so amended, all of the terns and conditions o
the Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Authority and City have caused this Sec
Amendment to Lease Agreement to be executed and attested by thei
proper officers thereunto duly authorized, and their official se
to be hereto affixed as of the date first above written.
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PARKING AUTHORITY OF THE CITY OF
BY
BY
CITY OF CARLSUAD
BY
BY
(Attach Exhibits A & B)
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GRANT DEED
(Exchange Parcel Y)
The undersigned, PLAZA CAMINO REAL, a limited partnership
organized and existing under the laws of the State of California
the general partner of which is The May Stores Shopping Centers,
Inc., ("Grantorll), hereby grants to THE PARKING AUTHORITY OF THE
CITY OF CARLSBAD, a public corporation, (l*Granteellll), the follow
ing described real property in the State of California, County
of San Diego, City of Carlsbad, more particularly described as
follows :
Lot 26 of Carlsbad Tract 76-18 according to Map
No. 8956 filed in the Office of the County Recorder of Said County on August 11, 1978.
RESERVING UNTO GRANTOR, its successors ar,d assigns, and to
and for the benefit of each and every portion of adjoining Lots
2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24,
25, 28 and 29 of Carlsbad Tract 76-18 (hereinafter referred to
as the lladjoining lots1*), easements or,, under and over the land
conveyed hereby as follows :
(a) Easements (hereinafter referred to as "installation
easen~ents~' ) for :
(i) The installation and maintenance of utilities
as may be necessary or appropriate to provide
utility service to the adjoining lots. Grantor
shall have the right to grant to utility
companies the appropriate easements for the
installation and maintenance of utilities as
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EXHIBIT E
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may be necessary to provide utility service
to such lots. All such utilities shall be
underground? except with respect to those
facilities which are normally aboveground
in connection with underground utility systerr
The term l1utilities" as used herein, include2
but is not limited to works, lines, and struc
tures Recessary to provide the following proc
or services to said adjoining lots: water,
sewers, drainage, electricity, gas, telephone
and cable or closed circuit television.
(ii) The purposes of erecting, constructing,
maintaining and operating signs to provide
proper advertisement of and directions for
business establishments located on the
adjoining lots.
I
(b) Easements (hereinafter referred to as "common use'
easements) for the purpose of ingress and egress 1
any pedestrians, automobiles, trucks and any othei
vehicles to and from the adjoining lots, or any
portion thereof by traversing the land conveyed ht
in any direction to or from any point on the commc
boundary line of the land conveyed hereby and the
adjoining lots or any portion thereof, and the pal
of such vehicles including but not limited to, an
easement for access to Lot 21 of the aforementionc
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CT 76-18 and from there to a public street, to wit
Marron Road; provided, :,owever, that said common u:
easement shall not be exercised so as to interfere
with the use of the land conveyed hereby for publil
parking lot purposes and said comlnon use easements
shall be exercised consistent with the configuratii
of said pubiic parking lot.
The easement rights reserved hereby include the power on th
of Grantor, its successors and assigns, and the other owners of
adjoining lots, their successors and assigns, to grant easements
licenses for the use of said easement rights to others, provided
grants are solely for the benefit of the adjoining lots.
The easement rights reserved hereby and any licenses to
be granted thereunder are subject to the following condition:
The rights of usage under the common use easements
shall be nonexclusive, and ir, common with the
rights of usage on the part of each owner of or
licensee under such rights and with all members of
the public having the right or privilege for like
usage of the Parking Facilities under the terms
and provisions of that certain Lease Agreement,
dated August 21, 1969, as amended, (hereinafter
referred to as the IrLease"), by and between Grantee
and the City of Carlsbad, a niunicipal corporation.
The rights under the easements hereby reserved shall be
appurtenant to the adjoining lots and any portion thereof.
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A. The conveyance hereby made is also subject; to the
following :
1. The Lease covering the land conveyed hereby
executed by Grantee herein as Lessor to the
City of Carlsbad, as Lessee.
2. The easements, rights-of-way, conditions, covenantd
restrictions, reservations, and similar matters
of record on the date of delivery of this Grant
Deed to Grantee.
B. The conveyance hereby made is also subject to, and
Grantee, by its acceptance of this Deed, for itself, its success(
and assigns, hereby makes and agrees to the following cover?ants,
conditions, 2nd restricf?-or?s, namely:
L. The land conveyed hereby shall be held in trust
by Grantee, and its successors, and dedicated
perpetually to public use as a municipal parking
lot available to the public. Grantee, and its
successors and assigns, shall operate the municipa
parking lot without charge *to the public unless
such charge to the public is required by anothe'r
governmental entity other than Grantee or the City
of Carlsbad , or afiy agency or instrumentality
thereof, as a part of a parking management program
transportation control plan, or other government
regulation of parkipg and such charge cannot be
8/20/78 -4 -
.t
ea me I. :
legally absorbed by Grantee or its successors and
assigns. Said parking lot shall be maintained in
good condition with all necessary repairs and re-
placeriients and shall be operated by Grantee in
such a manner as to provide internal traffic
routing and control so as to maintain proper flow
of traffic around and within said parking lot and
to provide at all times access fo? ingress and
egress to and from the adjoining lots including,
but not limited to, pedestrians, automobiles and
commercial vehicles engaged in making deliveries
to and pickups from establishnients or? the adjoin-
ing lots and unloading opertions in cor?necti.cn
therewith. Said parking lot shall be kept open
for public parking on all days, including holidays
and at all hours except when there is no reason-
able need in the adjoining lots for parking in
said parking lot or when and insofar as reasonably
necessary for repairs or maintenance. No improve-
ments, structures, buildings, or facilities shall
be placed thereon or therein which obstruct,
interfere with or restrict the use of the land
conveyed hereby as a niunicipal parking lot, except
for decorative plantings, lighting facilities and
other improvements incidental to the use of said
10/20/78 -5 -
*
em om LI
land as municipal parking lot.
As used hereir?, thc term "total taking"
refers to a taking, through or in lieu or eminent
domain proceedings, of eighty percent (80%) or
more of the total area of the parking lot and
the term ltpartial taking1t refers to a taking
through such proceedings of any lesser area.
(a) In the event of a total taking, the corn-
pensation awarded for each taking shall
be apportioned as follows: Grantee shall
receive out of the award for such taking an
amount equal to its unpaid indebtedness for
the cost of improvemects and costs of oper-
ation and maintenance of the parking faciliti
incurred by it, less the amount held by or
, for it for any such purposes. The balance
of the award for such taking shall be
apportioned between Grantor and Grantee,
and their respecive s'uccessors and assigfis,
as their respective interests may be deter-
mined by the Court.
(b) In the event of a partial taking, Grantee
shall cause the construction, upon the
remainir.g portion of the land conveyed
hereby, of a multi-level parking structure
10/20/78 -6 -
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me am ,- I.
or structures, or other replacement parking
facilities having sapacity sufficient to
compensate, to the extent reasonably possible
in light of such physical limitations such
partial taking imposes, for the reduction in
parking capacity caused by such partial takin
I if and to the extent that proceeds apportione
to it as a result of such taking are availabl
Grantor may, at its election, contribute towa
the cost of such replacement parking faciliti
In the event that the proceeds of any such ah
in eminent domain apportioned to Grantee or
its successors in interest are not required t
be so used as above-provided, such proceeds
shall be deposited in a fund for discharge or
redemption of any indebtedness of Grxntee in
connection with the initial construction of
said parking facilities or to Grantee if suck
indebtedness has been fully discharged. That
portion of any such award apportioned to -*
Grantor as a result of such taking shall be
retained by the Grantor.
2. If at any time or times Grantee fails to carry out
or to cause to be carried out, the maintenance anc
operation of the land conveyed hereby as a public
10/20/78 -7 -
m 0
parking lot in accordance with paragraph 1 of
this Section B, or the construction provided
for therein, if required, Grantor or its
successors or assigns, shall have the right
at its election, in addition to and without
prejudice to any other remedies, immediately
to assume and carry out the maintenance and
operation of and construction on said land
as a public parking lot, provided that Grantor,
or its successors or assigns upon assuming
such maintenance and operation, shall pay the
cost thereof, until such time as Grantee
assumes and is ready to carry out, or causes
another person f association, or corporation
ready and able to do so, to assume and carry
out the maintenance and operation of said land
as a public parking lot in accordar?ce with
paragraph 1 of this Section B.
3. Should the parking facilities be damaged by fire,
lightning, vandalism, malicious mischief or any
other casualty, Grantee shall cause the repair
of such'damage with all reasonable dispatch.
Grantee shall procure and maintain or cause to
be procured and maintained in full force and
effect at all times, a policy or policies of
insurance against loss or damage to the improve-
10 /20/7 8 -8-
1 )I) 111) I ,-
merits of the parking facilities, resulting from
fire, lightning, vandalism, malicious mischief
and such other perils as are ordinarily included
in "fire and extended coverage insurance",
providing coverage at one hundred percent (100%)
of the replacement value of said improvenients
writter! by a financially respocsible insurance
company(s) authorized to do business in the State
of California. Anyone having possession of any
or all of said parking facilities under a iease,
license or other similar document, or anyone to
whom all or any part of said parking facilities
are assigned, pledged or placed in trust as
securicy for any loan for tne cost af said im-
I provernents shall be named as additioRal insured
I under such policies of insurance. The insurance
obligations of Grantee pursuant to this paragraph
are fulfilled if Grantee causes the procurement
and mainLenance of such insurafice acd Grantee or
its successors and assigns are named as additional
insured under said policy of insurance. If the
improvements are to be repaired or rebuilt all
proceeds of insurance with respect to loss or
dartiage shall be applied toward the cost of said
repair or rebuilding. If the improvements are
not required to be repaired or rebuilt as pro-
vided for herein, all proceeds of insurance
i
10/20/78 -9-
I m - with respect to loss or damage shall be deposited
in a fund for redemptio:, of indebtedness of Grante
in connection with the construction of said parkin
fac il ity impr overnen ts .
4. Enforcement of the conditions, restrictions,
reservations and covenants herein provided may be
by any legally available remedies. Such remedies
shall include, but not be limited to, injunction
or specific performance.
5. This grant is made on the express understanding
that the Lease constitutes valid and binding
obligations respectively on the part of Grantee
and the Lessee therein named, and should the
contrary be established at any time during the
term of the Lease pursuant to entry of a final
judgment of court of competent jurisdiction, the
entry of such judgment shall constitute a conditic
subsequent to the conveyance hereby made pursuant
to which all right, title and interest ir, and to
the land conveyed hereby shall revert to and .
revest in Grantor in the same manner as if this
conveyance had never been made.
6. In the event that Grantee or its successors and
assigns fail to perform and fulfull the covenants
conditions and restrictions set forth in Paragrap1
1 through 5 inclusive, for a period of ninety (90:
10/20/78 -10-
m rn ” 1
days after written notice from Grantor cr its
successors or assigns, Grantor or its successors
assigns shall have the right, at; its electiol?, i
addition ‘to and without prejudice to any other
remedies, immediately to terminate the estate he
granted fcr condition broken by reentering the 1
conveyed hereby pursuant to California Civil COG
Sectiol? 1109 or any successor statute.
7. Each and all of the covecants, coRditions and
restrictions herein set forth shall be deemed
and construed to be continuing, and the extinqu:
rnent of any right of entry or reversior: for any
breach shall not impair or affect any of said
covenants, conditicns or restrictions so far as
any future or other breach is ccncerned. No wa
of breach of any of the covenants, conditions a
restrictions herein coztained shall be construe
to be a waiver of any other breach of the same
other covenants, conditions or restrictions
nor shall failure to enforce any one of such
covenants, conditions or restrictions either by
forfeiture or otherwise, be construed as a
waiver of any other covenants, conditions or
restrictions: provided, however, that no such
breach shall defeat the lien or encumbrance
10/20/78 -11-
m - affecting the land conveyed hereby and made in
good faith to secure indebtedness incurred in
improving said land for the uses and purposes
aforesaid.
8. The covenants, conditions and restrictions made
by Grantee hereunder are hereby expressed to be
for the benefit of the adjoining lots and are
made expressly by Grantee to bind its successors
and assigns in fa;lor of Grantor and the owners
of the adjoining lots and the respective succes-
sors and assigns of Grantor and said owners, and
are expressly intended to run with such land and
each port,i>n the?eQ?.
9. In addition to all of the covenants, conditions,
restrictions and other provisions hereinabove set t
I
I forth t the conveyance contained herein from Grantc
to Grantee is subject to the following additior,al
condition and right of reentry: concurrently witk
the execution and delivery of this deed, Grantee i
executed and delivered a deed (herein referred to
the "Exchange Deed") conveying to Grantor Lot 19 (
Carlsbad Tract 76-18, according to Map No. 8956
filed in the office of the County Recorder of San
Diego County on August 11, 1978 (herein referred
to as the "Exchange Land"). The Exchange Deed
10/20/78 -12-
- - t
contains a right of reentry in favor of Grantee (hi
referred to as the *'Exchange Reentry Right"). In
event that Grantee or its successors or assigns sh
exercise the Exchange Reentry Right, Grantor, or i
successors or assigns, shall have the right imrriedi
to terminate the estate herein granted for conditi
broken by reentering the land conveyed hereby purs
to Califvrnia Civil Code Section 1109 or any succe
statute. In the event that the Exchange Land is
released from the Exchange Reentry Right, then the
land hereby conveyed shall be automatically releas
from the right of reer,try contained in this paragr
9 wjthout it being necessary for Grantee, or its
successors or assigns, to take ar,y actior, to effec
such release; provided, however, that the release
the land hereby conveyed from the right of reentr)
contained in this paragraph 9 shall not in any waj
affect any of the other covenar,ts, conditions, re:
tion afid other provisions of this grant deed. In
event the land hereby conveyed shall be releas6d 1
the right of reentry contained in this paragraph 5
then for the purpose of corrcborating such releasc
Grantor, or its successors or assigns, shall exec1
and deliver in recordable form to Grantee, or its
10/20/78 -13-
- aD I' ' A,
successors or assigns, an instrument in form satis
tory to Grantee, or its successors or assigns, con
firming such release, which instrument shall recit
that such release in no way affects any of the 0th
covenants, conditions, restrictions and other prov
sions cor:taiEed in this grant deed. Without limit
the generality of paragraph 8 above, the provisior
contained in this paragraph 9 shall be binding upc
and inure to the benefit of the respective succes:
and assigns of Grantor and Grantee.
PLAZA CAMINO REAL, a limited par
By: The May Stores Shopping Cer
Sole General Partner
BY
BY
(
(Add acknowledgements)
10/20/7 8 -14-
n
- a ,r . .*
SECOND AMEN DI4ENT
TO THE PLAZA CAMINO RAL PUBLIC PARKING
LOT OPEHATIt1ti AtiKL.,EhiiI.IT
THIS SECOND AMENDPIEIJT to The Plaza Camifio Real Public Parki
Operating Agreement is made as of the day of
197'7, by and between the CITY OF CARLSBAD, a mu:?icipal corporati
the State of California (llCityll) , the PARKING AUTHORITY OF THE C
CARLSBAD, a body corporate and politic of the State of Californi
("Parking Authority"), and PLAZA CAHIIJO REAL, a limited partt?er:
organized under the laws of the State of California (tlOperatortl:
reference to the following facts and circumstances:
A. City, Parking Authority, and Operator are parties to Ti
Tlaza Canino Xe;l ?i;bllc Pc;r!:ing tct 9perzticg :\gree:::e!:t, dztec!
IIIoveiriber 24, 1969 as amended by an amendment thereto dated Augu:
1978 (the "Operating AgreementT1) , whereby City and Parking Authc
contracted for the operatior: by Operator of a certain parking 1i
leased to City by the Parking Authority pursuant to a Lease Agrl
dated August 21, 1969 as amended by an amecdment thereto dated
3, 1978 (the "Lease Agreement").
B. City and Parking Authority have entered into a Secind
ment to Lease Agreement, of even date herewith, whereby a porti
of the parking lot therein referred to as Exchacge Parcel X wil
released from the Lease Agreement and certain other property th
referred to as Exchange Parcel Y will be included within the pr
10/20/7 8 -1-
EXHIBIT F
.I
P - __
covered by the Lease Agreement upon the recordation of certain d
as therein described.
C. City, Parking Authority, and Operator desire that concu
rently with the release of Exchange Parcel X from the Lease Agre
ment and the inclusion of Exchange Parcel Y within the property
covered by the Lease Agreement, Exchange Parcel X shall be relea
from the Operating Agreement and Exchange Parcel Y shall be incl
within the property co-iered by the Operating Agreement.
D. Said Second Amendment $0 Lease Agreement also provides
the inclusion of Exchange Parcel X within the property covered t
the Lease Agreement upon reentry of said parcel pv.rsuar,t to the
right of reentry contained in the deed of Exchange Parcel X tG
Plaza C~ic~iao Eeal z!Ct fr+? the rcl2ase of Exchange Parcel Y from
the Lease Agreement upon reentry of said parcel pursuant to the
corresponding right of reentry contaiced in the deed of Exchapgc
Parcel Y to the Parking Authority.
NOW, THEREFORE, the parties agree as follows:
1. Concurrently with the release of Exchange Parcel X fron
the Lease Agreement and the icclusion of Exchange Parcel Y with’
the Lease Agreement, pursuant to the aforementioned Second Amen(
to Lease Agreement, Exchange Parcel X shall be released from th
Operating Agreemer?t and Exchange Parcel Y shall be covered by t
Operating Agreement.
2, If Exchange Parcel Y shall be released from the Lease
4
Agreement pursuant to the provisions thereof dealing with reent
then, in that event, automatically and without the necessity of
10/20/78 -2-
.I
11 I * - further action by any person, Exchange Parcel Y shall be release
from the Operating Agreement. If Exchange Parcel X shall be inc
within the property ccvcred by the Lease Agreement pursuant to t
provisions thereof dealing with reentry, then, in that event,aut
matically and without the necessity of any further action by any
person, Exchange Parcel X shall be covered by the Operating Agre
3. Except as so amended, the Gperating Agreement remains i
full force and effect.
IN WITNESS WHEREOF, City, Parking Authority and Operator ha
caused this Second Amendment to Plaza Canino Real Public Parking
Operating Agreement to be executed and attested by their proper
officers thereunto duly authorized , and their official seals to
hereto affixed as of the date first above writter,.
CITY OF CARLSBAl;
BY
BY
PARKING AUTHORITY OF THE CITY OE
BY
BY
PLAZA CAMINO REAL, a limited pa
BY
BY
10/20/78 -3-
- - b% \
G U A R ANT Y
THE MAY STORES SHOPPIIJG CEIiTERS, INC., a Missouri corporati1
authorized to do business in the State of California, hereby gua
Plaza Cainino Real's (llDeveloperlT) obligations ur,der Paragraph 10
that certain Second Exchange Agreement and Escrow Instructions, (
, among Geveloper, the City of Carlsbad (!IC
and the Parking Authority of the City of Carlsbad (!'Parking Authc
and further agrees to furnish security in favor of City and Park
Authority guaranteeing the obligations set forth in said Agreemel
to improve for parking purposes the land therein referred to as
Exchange Parcel Y, as set forth therein. Said security to be a SI
bond in the amount of $150,000.
Dated:
THE NAY STORES SHOPPING CENTERS, a Missouri corporation
BY
BY
8/20/78 EXHIBIT G
c w __ L' < -
Coveba!)ts, Conditions, Restrictions Easements
and Reservations
(Exchaiigc ParcLl Y) I-_____
1. The matters contained in an Agreement recorded April 21
1966, Recorder's File No. 66916.
Reference is made to said document for full particulars.
Said Agreement has been modified by an fime1,dment thereto re
By an instrument recorded August 15, 1978 2s Recorder's Fil
2. An Agreement to which reference is hereby made for full
Dated : July 28, 1969
By and Between: Plaza Carnino Real, a California limited pa
ship, The May Department Stores Company, a
York corporation, and J. C. Penney Company,
a Delaware corporation.
July 28, 1979, Recorder's File Uo. 135915.
No. 78-346433, said Agreement was amended.
particulars :
Regarding : Construction, operation and reciprocal eas
Recorded : July 28, 1969, Recorder's File No. 135913
Covenants, copditions and restrictions, contained thereon
have been niodified by an instruinent recorded September 27, 1971, Recorder's File 140. 220157 and October 26, 1976 as Recorder's Fi
All matters shown on the final hap for Carlsbd Tract No
NO. 76-354986.
3.
4. An Agreement to which reference is hereby made for full
Dated : August 15, 1978
By and Between: Plaza Camino Real, a California limited pi ship, The May Department Stores Company, i
York corporation, J. C. Penney Company, Inc Delaware corporation, Sears, Roebuck and (
New York corporation, Federated Department Inc., a Delaware corporation and Carter HE Hale Stores, Inc., a California corporatic
CT 76-18.
particulars :
1 1/ 10 /7 8 EXilIBIT H
* ., w
Regarding : Amended and Restated Construction, Operati
Recorded : August 15, 1978 as Recorder's File No. 78-
5. Easements set forth in Memorandum of Lease between Plaz Cainino Real, a California limited partnership and Sears, Roebuck
Co., a New York corporation and easements set forth in a deed fr
Plaza Carnino Heal to Federated Department Stores, Inc., a Delawa
Corporation, recorded on August 15, 1978 as Recorder's File Nos. 78-346426 and 78-346419, respectively.
and Reciprocal Easement Agreercent.
11/1O/7 8 -2-
.)
* * r-
Covenants I Cc nd i t ions, Re str ic t ions Ea semen ts
and Reservations
(Exchange Parcel X)
1. The matters contained in an Agreement recorded April 21 1966, Recorder's File No. 66916.
Reference is made to said document for full particulars.
Said Agreement has been modified by an Amendment thereto rec
July 28, 1979, Recorder's File No. 135915.
By an instrument recorded August 15, 1978 as Recorder's Fil
2. An Agreenent to which reference is hereby made for full
Dated : July 28, 1969
By and Between: Plaza Caniino Real, a California limited pa ship, The May Department Stores Company, a
York corporation, and 2. C. Penney Company, a Delaware corporation.
No. 78-346433, said Agreement was amended.
part icul ar s :
Keg ar d ing : Construction, operation and reciprocal eas
Cecorded : July 28, 1969, Recorder's File No. 135913
Covenants, conditions and restrictions, contained thereon have been modified by an instrument recorded September 27, 1971, Recorder's File No. 220157 and October 26, 1976 as Recorder's Fi NO. 76-354986.
3. All matters shown on the final map for Carlsbd Tract Nc CT 76-18.
4. An Agreement to which reference is hereby made for ful: particulars:
Dated : August 15, 1978
By and Bettreen: Plaza Caniino Real, a California limited pi ship, The May Department Stores Company, I York corporation, J.C. Penney Company, In(
Delaware corporation, Sears, Roebuck and ( New York corporation, Federated Departmen Inc., a Delaware corporation arid Carter Hi
Hale Stores, Inc., a California corporatic
l'l/ 10 /7 8 EXHIBIT I
- - A.-
8-
Regarding : Amended and Restated Construction, Operatic
Re c ipr oca1 Ea sement Agreement .
Record ed : Atlgust 15, 1978 as Recorder's File No. 78-:
5. Memorandum of Lease between Plaza Camino Heal, a Califof limited partnership and Carter Hawley Hale Stores, Inc., a Califc
corporation recorded Ai;gust 15, 1978 as Recorder's File 140. 3464;
6. Memorandum of Agreement to Sell/Purchase between Plaza ( Real, a California limited parthership and Carter Hawley Hale St(
Inc., a California corporation, recorded August 15, 1978 as Recoi File No. 346435.
I
11/10/7 8 -2-
n