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HomeMy WebLinkAbout1978-11-21; City Council; 3481-20; Plaza Camino Real ExpansionI __ -- CITY QF CPKLSBAD c^r / q4#J JYf !'33) .------e I h ! e" k 4 AGENDA BILL NO. 34f/ - *g?f) Initial: Dept-Hd, DATE : November 21, 1978 C Atty .w& C. Mgr.' 3 Subject : PLAZA CAMINO REAL EXPANSION -- BROADWAY LAND EXCHANGE AGREEMENT AND ESCROW INSTRUCTIONS Statement of the Matter The Fifth Supplement to the Plaza Camino Real Expansion Agreement between the City, Parking Authority and Plaza Camino Real provides for a property exchange for the Broadway Store site. The documents necessary to effect the Broadway land exchange are attached. They are sub- stantially the same as the documents which the City Council approved at your adjourned meeting of August 3, 1978 for the Bullock's land exchange. A resolution approv- ing the documents is attached. Exhibits ~ Second Exchange Agreement and Escrow Instructions. .. Resolution No. ,$-bas' . Recommendation If the City Council concurs and wishes to approve the Broadway land exchange, your action is to adopt Resolution No.Kb 674- - Council action: 11-21-78 Council adopted Resolution 5625, approving a Second Exchange Agreement and Escrow Instructions and all related documents made exhibits thereto between the City, the Parking Authority and the Plaza Camino Real to effect the Broadway Land Exchange. I r f + , SECOND EXCHANGE AGREEMENT AND ESCROW INSTRUCTIONS To: Title Insurance and Trust Company This instrument constitutes an agreement between the CITY OF CARLSBAD (llCitytl), the PARKING AUTHORITY OF THE CITY OF CARLSBAD ("Parking Authorityf1), and PLAZA CAMINO REAL, (llDevelopertl), regarding the exchange of certain real property in the City of Carlsbad, State of California, and further constitutes escrow instructions to Title Insurance and Trust Company (llEscrow Holder") in respect of said exchange. This instrument is hereinafter referred to as "this Escrow Agreement". Escrow Holder need not be concerned with matters of agreement among City, Parking Authority, and Developer, except as specifically provided in this Escrow Agreement. Thjis Escrow Agreement is entered into with referefice to the following facts and circumstances: A. Pursuant to that certain Agreement, dated November 5, 1975, as amended, by and between City, Parking Authority and Developer (the "Expansion Agreementr1) , Parking Authority and Developer have agreed to exchange with one another the real property now owned by Parking Authority described in Exhibit A attached hereto and made a part hereof by reference (IIExchange Parcel X") which property is a fully -1- improved parking lot consisting of 87 parking spaces, for the real property now owned by Developer described in Exhibit B attached hereto and made a part hereof by reference ( IlExchange Parcel 'Y1l) which parcel is unimproved. B. Immediately after the receipt of said conveyance from Park- ing Authority, Developer intends to convey Exchange Parcel X to Carter Hawley Hale Stores, Inc. (llCarterll). Developer and Carter have entered into a separate escrow with Escrow Holder (the "Carter Escrow" 1 through which the latter conveyance will be accomplished. C. Developer shall improve Exchange Parcel Y for parking purposes and shall complete the same not later than the completion of the new public parking area pursuant to the Expansion Agreement. Exchange Parcel Y shall be improved by Developer in the same manner as Exchange Parcel X and shall be of at least equal value and utility for parking purposes as Exchange Parcel X. The details of sluch improvements shall be in accordance with the Precise Plan of Development approved by the City pursuant to the Expansion Agreement , which Precise Plan, as approved, is hereby incorporated herein by reference. D. Developer will pay all costs arising in this escrow and, in addition, will pay the fees of City and Parking Authority's outside legal counsel for their services in the negotiation and drafting of this Escrow Agreement. 8/20/78 -2- -. -. NOW, THEREFORE, the parties agree as follows: 1. Subject to the specific provisions herein, Parking Authority will convey Exchange Parcel X to Developer and Developer will convey Exchange Parcel Y to Authority. Developer shall improve Exchange Parcel Y for parking purposes and shall complete the same not later than the completion of the new public parking area pursuant to the Expansion Agreement. Exchange Parcel Y shall be improved by the Developer in the same manner as Exchange Parcel X and shall be of at least equal value and utility for parking purposes as Exchange Parcel X. The details of such improvement shall be in accordance with the Precise Plan of Development approved by the City pursuant to the Expansion Agreement, which Precise Plan of Development, as approved, is hereby incorporated herein by reference as though set forth in full. The May Stores Shopping Centers, Inc., the General Partner of the Limited Partnership constituting Developer shall execute a guaranty of Geveloper's obligations under this paragraph 1 in the form attached hereto as Exhibit G and made a part hereof by reference, and shall furnish the bond required pursuant to said guaranty. Any and all expenses and costs incurred in connection wfth this Exchange Agreement or the implementation hereof shall be borne by the Developer. 2. On or before 12:OO noon of the day preceding the closing date, City and Parking Authority shall hand to Escrow Holder: 8120178 -3- c r 6 (a) A deed executed by Parking Authority to Developer * covering Exchange Parcel X, in the form attached hereto as Exhibit C and made a part hereof by reference (the "Parcel X Deedtt); (b) Such resolution and/or other evidence of authority as may reasonably be required to satisfy Escrow Holder pursuant to subparagraph (c) of Paragraph 6 that the Parcel X Deed will convey insurable fee title to Exchange 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 Agreement, dated August 21, 1969, as amended, between Parking Authority and City, in the form attached hereto as Exhibit D and made a part hereof by referense (the "Lease Amendmentt1). (e) Any other documents required to enable the Escrow Holder to comply with those instructions. 3. On or before 12:OO noon on the day preceding the closing date, Developer shall hand 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 tlParcel Y Deedt1) ; -4 = c < .- I (b) The fully executed guaranty and bond required pursuant to Paragraph 1 of this Escrow Agreement; (c) Any other documents or funds required to enable the Escrow Holder to comply with this Escrow Agreement. 4. On or before 12:OO noon of the day preceding the closing 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 Operatipg Agreement, dated November 4, 1969, as amended, by and between City, Parking Authority and Developer, in the form attached hereto as Exhibit F and made a part hereof by reference (the "Operating Agreement Amendmenttt 1 . 5., The closing date shall occur as soon as practical after I the fulfillment of the conditions set forth in Paragraph 6. escrow shall not have closed by December 31, 1979, then at any time thereafter, either Developer or Parking Authority may terminate this Escrow Agreement by written notice to the other and to Escrow Holder, unless the escrow shall have closed prior to the giving of 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 items required to be paid by Devel- oper pursuant to Paragraph 10 hereof. If this I 8120178 -5 - r , 6. The close of escrow is subject to the following conditions: (a) That the Carter Escrow will be il? a position to be closed concurrently with the close of this Escrow Agreement; (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 liability to $47,024.00 showing title to Exchange Parcel Y vested in Parking Authority subject only to: (i) The usual printed exceptions in such form of policy; (ii) Convenants conditions, restrictions ease- ments and reservations of record as set forth in Exhibit H attached hereta; (iii) The matters set forth in the Parcel Y Deed. (iv) Liens for taxes and any special assessments collected as taxes which are not yet payable. (c) That Escrow Holder shall be satisfied that the Parcel X Deed will convey insurable fee title in Exchange Parcel X to Developer, subject only to: (i) The usual printed exceptions to a standard form CLTA policy of title insurance; 8120178 -6- (ii) Covenants, conditions, restrictions, ease- ments, and reservations of record, as shown.in Exhibit I attached hereto; (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 in the Carter Escrow. 7. Subject to each party fulfilling its obligations under Paragraph 2, 3 and 4, no party guarantees that the conditions to the close of escrow will be fulfilled. 8. Upon the close of escrow, Escrow Holder is authorized and instructed to: (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 Authority; (b) Deliver to City and Parking Authority two (2) of the counterparts of the Operating Agreement Amendment and the aforementioned guaranty and bond; and (c) Deliver to Developer one counterpart of the Lease Amendment and one counterpart of the Operating Agreement Amendment. 8/20/78 -7 - , 9. All taxes and any special assessments collected as taxes affecting Exchange Parcel Y which are payable shall be paid by Developer prior to the close of escrow. Any such taxes and assess- ments which are a lien but are not yet payable as of the close of escrow shall be paid by Developer promptly after they become payable. City and Parking Authority shall cooperate and assist Developer in attempting to secure the cancellation of taxes on Exchange Parcel Y effective as of the close of escrow so that Developer may obtain a refund of any taxes paid by Developer on Exchange Parcel Y for any period subsequent to the close of escrow. 10. Other provisions to the contrary notwithstanding it is understod and agreed th2t the cherges for any title policy, docu- mentary transfer tax, escrow fees and other charges in this escrow shall be borne by Developer. Developer shall also pay the fees of , City and Parking Authority's outside legal counsel for their sevices 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 Agreement to enter Exchange Parcel X for purposes of grading or development 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. 8/20/78 -0- 12. All funds received in this escrow shall be deposited in one or more general escrow accounts of Escrow Holder with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. Escrow Holder is authorized to record any instruments delivered through escrow which are neces- sary or proper for the issuance of the title policies called for in this Escrow Agreement. 13. This Escrow Agreement and the Expansion Agreement contain the entire agreement of the parties in respect of the exchange of Exchange Parcels X and Y, and all negotiations and agreements between the parties hereto or their agents with respect to said exchange are merged in this Escrow Agreement and Expansion Agree- ment, which alone express the parties' rights and obligations with respect thereto. The obligations of Developer under Pai-agraphs 1 and 9 and City and ParkiRg Authority under Paragraph 9 hereof shall 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 Expacsion Agreement. 14. In the event of any litigation arising out of the subject matter of this Escrow Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. -9- ." t 15. Time is of the essence of this Escrow Agreement. The term tlclose of escrow11, as used herein, means the date the in- struments herein referred to are recorded. The term tlclosing 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 Holder shall close this escrow as soon after the closing date as possible, unless this Escrow Agreement is terminated pursuant to Paragraph 5 hereof. 16. This Escrow Agreement shall not be amended in any manner, unless such amendment is signed by all 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 ever,t the date by which the parties' performances and due hereir, shall be other %han a regular business day, such performance shall be due on the next precedir,g regular business day. Dated as of 9 1978 ATTEST CITY OF CARLSBAD By: {Signatures continued on the following page) -10- I ! ATTEST PARKING AUTHORITY OF THE CITY OF CARLSBAD Bv: PLAZA CAMINO REAL, a California 1 im i t ed partner shi p By: The May Stores Shopping Centers, Inc. \ Bv: By: APPROVED AS TO FORM Vincent F. Biondo, Jr. j City Attorney ~ The escrow instructions embodied in the above Exchange Agreement and Escrow InstructionF are hereby accepted. TITLE INSURANCE AND TRUST COMPANY By: -11- .- LEGAL DESCRIPTION OF EXCHANGE PARCEL X The real property in the State of California, County of San Diego, City of Carlsbad, more particularly described as follows: Lot 19 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 10/20/7 8 EXH.IBIT A A LEGAL DESCRIPTION OF EXCHANGE PARCEL Y The real property in the State of California, County of San Diego, City of Carlsbad, more particularly described as follows: 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 10/20/78 EXHIBIT B ! "" RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Plaza Camino Real c/o The May Stores Shopping Centers, inc. 10738 West Pic0 Boulevard, Suite 1 Los Angeles, California 90064 Attention: Herbert L. Roth GRANT DEED (Exchange Parcel X) The undersigned, the PARKING AUTHORITY OF THE CITY OF CARLSBAD, a public body corporate and politic, organized and existing under the laws of the State of California ("Grantor"), hereby grapts to PLAZA CAMINO HEAL, 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. ("Grantee") the following described real property in the State of California, County of San Diego, City of Carlsbad, more particularly described as follows: Lot 19 of Carlsbad Tract 76-18 according 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, reservatians 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 the following: 10/20/78 -1- EXHIBIT C Grantor has granted the real property conveyed hereby to Grantee with the understanding that Grantee will convey said real property to Carter Hawley Hale Stores, Inc. (ttCartertfJ and that Carter will commer.ce construction of a department store building thereon by December 1, 1981. If Carter has not commenced construc- tion of a department store building thereon pursuant to a building permit issued by the City of Carlsbad on or before December 1, 1981, Grantor or its sdccessors or assigns may give written notice of such fact to Carter or its successors or assigns, and if such construction is not so commenced within sixty (6G) days after the giving of such written notice, Grantor shall have the right immedi- ately to terminate the estate herein granted for condition broken by reentering the land cofiveyed hereby pursuant to California Civil Code Section 1109 or any successor statute; provided, however, said reentry shall not occur unless said notice is given not later than December 1, 1982. In such event, automatically and sirnulta- 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 conveyed hereby shall become subject to all of the covenafits, conditions, restrictions, and other provisions of that certain grant deed, dated October 21, 1969, from Grantee to Grantor, recorded on said date in the Official Records of the San Diego County Recorder as Document NO. 193480, as amended by an instrument recorded August 15, 1978 as Document No. 78-346341 entitled "Amendment of Deed Covenants, 10/20/78 -2- , Conditions, Restrictions and Reservations; Subordination Agreement and Parking Easements" executed by Grantor, Grantee and others (said deed, as amended, being hereinafter referred to as the "Original Grant Deed"). Such reentry shall be the sole remedy of Grantor and its successors and assigns if such construction is not so commenced. For the purposes of this deed, commencement of construction shall be deemed to have occurred upon the commencement of pouring concrete footings for said department store building. In the event such construction shall have so commenced on or before December 1, 1981, or on or before the expiration of the aforementioned sixty (60) day period, or in the event the afore- mentioned notice is not given on or before December 1, 1982, then for the purpose of corroborating that the real property conveyed hereby has been released from the right of reentry contained in this deed, Grantor, or its successors or assigns, shall execute and deliver in recordable form to Carter, or its successors or assigns, an instrument in form satisfactory to Carter, or its successors or assigns, confirming such release. In the event the reentry shall have occurred, then Carter or its successors or assigns shall execute and deliver in recordable form to Grantor or its successors or assigns a grant deed covering the real property conveyed hereby containing all of the covenants, conditions, restrictions and other provisions of the Original Grant Deed, and Grantor, or its successors or assigns shall accept such grant deed and cause it to be recorded in the Official Records of the San Diego County Recorder. Further, -3 = in the event the reentry shall have occurred, Grantor or its successors or assigns shall cause that Lease Agreement, dated August 21, 1969, as amended, between Grantor and the City of Carlsbad, California to be amended to provide for the inclusion of the real property coRveyed hereby in the Site covered by said Lease Agreement. The addresses of Grantor 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 assigns and Carter or its successors or assigns may each change its address for such purposes by written notice to the other: Grantor: Parking Authority of the City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Attention: City Clerk Carter: Carter Hawley Hale Stores, Inc. 550 South Flower Street Los Angeles, California 90071 Attention: Vice President Real Estate-Legal Notices shall be deemed given upon personal delivery to an officer of Grantor or its successors or assigns, or Carter or its successors or assigns, as the case may be, or upon a date the same is delivered or delivery was attempted by registered or certified United States mail properly addressed as aforesaid, postage prepaid, as shown on the return receipt. The provisions of this deed shall be binding upon and inure to the benefit of the respective successors and assigns of Grantor a/20/70 -4 - and Grantee, including, but not limited to, Carter. Dated : PARKING AUTHORITY OF THE CITY OF CARLSBAD Bv {Add ac kno wl edgemen t s 1 SECOND AMENDMENT TO LEASE AGREEMENT THIS SECOND AMENDMENT TO LEASE AGREEMENT is made'as of the day of , 1978, by and between the PARKING AUTHORITY OF THE CITY OF CARLSBAD (tlAuthoritylt), a public body corporate and politic, organized and existing under the laws of the State of California, and the CITY OF CARLSBAD (ttCitytl), a municipal corporation of the State of California, with reference 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 Agreementt1), whereby Authority leased to City certain land in the City of Carlsbad, California, improved 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 (tlExchange Parcel Xtl). B. Authority and City have entered into a certain Second Exchange Agreement and Escrow Instructions, dated , with Plaza Camino Real, a limited partnership, whereby Authority will exchange Exchange Parcel X, including the improve- ments thereon, for the land owned by Plaza Camino Real described in Exhibit B attached hereto and made a part hereof by reference ("Exchange Parcel Ytl). Pursuant to said Second Exchange Agreement and Escrow Instructions, Plaza Camino Real has agreed that it shall, 10/20/78 -1- EXHIBIT D i subsequent to the exchange, improve Exchange Parcel Y for parking purposes on the terms and conditions set forth therein. C. Authority and City desire by this Amendment to release Exchange Parcel X from the Lease Agreement and to bring within the terms of the Lease Agreement Exchange Parcel Y, effective upon the recording of the deeds pursuant to xhich Exchange Parcel X shall be conveyed to Plaza Camino Real and Exchange Parcel Y shall be conveyed to Authority. D. Authority and City have determined that Exchange Parcel Y is greater in acreage that Exchange Parcel X and is of at least equal value and utility for parking purposes as Exchange Parcel X. E. Exchange Parcel X has been conveyed to Plaza Camino Real subject to a right of reentry. Exchange Parcel Y has been conveyed to Authority subject to a corresponding right of reentry exercisable in the event the right of reentry for Exchange Parcel X is exercised. Authority and City desire that Exchange Parcel X shall automatically be brought within the terms of the Lease Agreement if reentry of Exchange Parcel X occurs and that Exchange Parcel Y shall automati- cally be released from the Lease Agreement if reentry of Exchange Parcel Y occurs. NOW, THEREFORE, Authority and City agree as follows: 1. Authority and City hereby release from the Lease Agreement Exchange Parcel X, including the improvements thereon , and Authority hereby leases to City and City hereby leases from Authority, as part of the property leased by Authority to City pursuant to the Lease 8/20/70 -2 - Agre.ement, Exchange Parcel Y, including the ituprovements to be con- structed thereon by Plaza Camino Real, as set forth in the afore- mentioned Second Exchange Agreement and Escrow Instructions, this amendment, said release, and said leasing to be effective upon the recordation of the deeds whereby Exchange Parcel X is conveyed to Plaza Camino Real and Exchange Parcel Y is conveyed to Authority. 2. If reentry of Exchange Parcel X occurs pursuant to the right of reentry contained in the deed of Exchange Parcel X to Plaza Camino Real, then, in that event, automatically and without the necessity of any further action by any person, the property leased by Authority to City pursuant to the Lease Agreement shall include Exchange Parcel X, including the improvements thereon. If reentry of Exchange Parcel Y occurs pursuant to the corresponding right of reentry contained in the deed of ExchaRge Parcel Y to Authority, then, in that event, automatically and without the necessity of any further action 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 terms and conditions of the Lease Agreement shall remain in full force and effect. IN WITNESS WHEREOF, Authority and City have caused this Second Amendment to Lease Agreement to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed as of the date first above written. 8/20/78 -3- c 8/20/78 PARKING AUTHORITY OF THE CITY OF CARLSBAD BY BY CITY OF CARLSBAD Bv -- -.I Bv {Attach Exhibits A & B) -4 - GRANT DEED (Exchange Parcel The undersigned, PLAZA CAMINO REAL, organized and existing under the laws of a limited partnership the State of California, the general partner of which is The May Stores Shopping Centers, Inc., (llGrantorll), hereby grants to THE PARKING AUTHORITY OF THE CITY OF CARLSBAD, a public corporation, (llGranteellll), 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 and assigns, and to and for the benefit of each and every portion of adjoining Lots 25, 28'and 29 of Carlsbad Tract 76-18 !hereinafter referred to as the "adjoining lotst1), easements on, under and over the land I conveyed hereby as follows : (a) Easements (hereinafter referred to as "installation easements") 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 10/20/78 -1- EXHIBIT E may be necessary to provide utility service to such lots. A12 such utilities shall be underground, except with respect to those facilities which are normally aboveground in connection with underground utility systems. The term as used herein, includes, but is not limited to works, lines, and struc- tures necessary to provide the following products 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. (b) Easements (hereinafter referred to as lVcommon use" easements) for the purpose of ingress and egress by any pedestrians, automobiles, trucks and any other vehicles to and from the adjoining lots, or any portion thereof by traversing the land conveyed hereby in any direction to or from any point on the common boundary line of the land conveyed hereby and the adjoining lots or any portion thereof, and the parking of such vehicles including but not limited to, an easement for access to Lct 21 of the aforementioned 8/20/78 -2- . CT 76-18 and from there to a public street, to wit: Marroh Road; provided, however, that said common use easement shall not be exercised so as to interfere with the use of the land conveyed hereby for public parking lot purposes and said cominon use easements shall be exercised consistent with the configuration of said public parking lot. The easement rights reserved hereby include the power on the part of Grantor, its successors and assigns, and the other owners of the adjoining lots, their successors and assigns, to grant easements and licenses for the use of said easement rights to others, provided such 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 in common with the rights of usage on the part of each owner of or licefisee 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 **Lease**), by and between Grantee and the City of Carlsbad, a municipal corporation. The rights under the easements hereby reserved shall be appurtenant to the adjoining lots and any portion thereof. 8/20/78 -3- A. The conveyance hereby made is also subject to the following : 1. The Lease covering the land conveyed hefeby executed by Grantee herein as Lessor to the City of Carlsbad, as Lessee. 2. The easements, rights-of-way, conditions, covenants, 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 successors and assigns, hereby makes and agrees to the following covenants, conditions, and restrictions, namely: 1. 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 municipal parking lot without charge to the public unless such charge to the public is required by anotheT governmental entity other than Grantee or the City of Carlsbad, or any agency or instrumentality thereof, as a part of a parking management program, transportation control plan, or other government regulation of parking and such charge cannot be 8/20/78 -4 - a / legally absorbed by Grantee or its successors and assigns. Said parking lot shall be maintained in good condition with all necessary repaifs and re- placements 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 for 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 establishments on the adjoin- ing lots and unloadir,g opertions in connection 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 municipal parking lot, except for decorative plantings, lighting facilities and other improvements incidental to the use of said 10/20/78 -5 - land as municipal parking lot. As used herein, the term "total taking" refers to a taking, through or in lieu of eminent domain proceedings, of eighty percent (80%) or more of the total area of the parking lot and the term "partial taking" refers to a taking through such proceedings of any lesser area. (a) In che event of a total taking, the com- 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 indebtedcess for the cost of inp?overnects 2nd costs of oper- ation and maintenance of the parking facilities 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 successors and assigns, as their respective interests may be deter- mined by the Court. (b) In the event of a partial taking, GraRtee shall cause the construction, upon the remaining portion of the land conveyed hereby, of a multi-level parking structure 10/20/7 8 -6 = or structures, or other replacement parking facilities having capacity 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 taking if and to the extent that proceeds apportioned to it as a result of such taking are available. Grantor may, at its election, contribute toward the cost of such replacement parking facilities. In the event that the proceeds of any such award in eminent domain apportioned to Grantee or its successors in interest are not required to be so used as above-provided, such proceeds shall be deposited in a fund for discharge or redemption of any indebtedness of Grantee in connection with the initial construction of said parking facilities or to Grantee if such 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, OF to cause to be carried out, the maintenance and operation of the land conveyed hereby as a public l0/20/78 -7 - / 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, 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 accordance 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 ah1 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- 10/20/78 -8- ments 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 improvements written by a financially responsible 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 lease, 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 security for any loan for the cost of said im- provements shall be named as additional insured under such policies of insurance. The insurance obligations of Grantee pursuant to this paragraph are fulfilled if Grantee causes the procurement and maintenance of such insurance and 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 damage 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 10 /2 0/7 8 -9- with respect to loss or damage shall be deposited , in a fund for redemption of indebtedness of Grantee in connection with the construction of said parking facility improvements. 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 condition subsequent to the conveyance hereby made pursuant to which all right, title and interest in 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 Paragraphs 1 through 5 inclusive, for a period of ninety (90) 10/20/78 -10- days after written notice from Grantor or its successors or assigns, 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 terminate the estate herein granted for condition broken by reentering the land conveyed hereby pursuant to California Civil Code Secticn 1109 or any successor statute. 7. Each and all of the covefiants, conditions and restrictions herein set forth shall be deemed and construed to be continuing, and the extinquish- ment of any right of entry or reversion for any breach shall not impair or affect any of said covenants, conditions or restrictions so far as any future or other breach is concerned. No waiver of breach of any of the covenants, conditions and restrictions herein cor.tained shall be construed to be a waiver of any other breach of the same or 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- -\ . affecting the land conveyed hereby and made in good faith to secure indebtedness incurred in improving said land for the uses and puEposes 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 bine its successors and assigns in favor 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 portion thereof. 9. In addition to all of the covenants, conditions, restrictions and other provisions hereinabove set forth, the conveyance contained hereir. from Grantor to Grantee is subject to the following additional condition and right of reentry: concurrently with the execution and delivery of this deed, Grantee has executed and delivered a deed (herein referredoto as the '?Exchange Deed") conveying to Grantor Lot 19 of 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- contains a right of reentry in favor of Grantee (herein referred to as the "Exchange Reentry Right"). In the event that Grantee or its successors or'assigns shall exercise the Exchange Reentry Right, Grantor, or its successors or assigns, shall have the right immediately to terminate the estate herein granted for condition broken by reentering the land conveyed hereby pursuant to California Civil Code Section 1109 or any successor statute. In the event that the Exchange Land is released from the Exchange Reentry Right, then the land hereby conveyed shall be automatically released . from the right of reer.try contained in this paragraph 9 without it being necessary for Grantee, or its successors or assigns, to take any action to effectuate such release; provided, however, that the release of the land hereby conveyed from the right of reentry contained in this paragraph 9 shall not in any way affect any of the other cover?ants, conditions, restric- tion and other provisions of this grant deed. In the event the land hereby conveyed shall be released from the right of reentry contair.ed in this paragraph 9, 10/20/78 then for the purpose of corroborating such release, Grantor, or its successors or assigns, shall execute and deliver in recordable form to Grantee, or its -13- .. successors or assigns, an instrument in form satisfac- tory to Grantee, or its successors or assigns, con- firming such release, which instrument shall recite that such release in no way affects any of the other covenants conditions ? restrictions and other prov i- sions contained in this grant deed. Without limiting the generality of paragraph 8 above, the provisions contained in this paragraph 9 shall be binding upon and inure to the becefit of the respective successors and assigns of Grantor and Grantee. PLAZA CAMINO REAL, a limited partnership By: The May Stores Shopping Centers, Inc. Sole General Partner BY GRANTOR {Add ac kn o wl ed g emen t s 1 10/20/78 -14- ,. i SECOND AMENDMENT TO THE PLAZA CAMINO REAL PUBLIC PARKING LOT OPERATING ACHEEMENT THIS SECOND AMENDMENT to The Plaza Camino Real Public Parking Lot Operating Agreement is made as of the day of ? 1977, by and between the CITY OF CARLSBAD, a municipal corporation of the State of California (ttCitytt), the PARKING AUTHORITY OF THE CITY OF CARLSBAD, a body corporate and politic of the State of California ("Parking Authoritytt), and PLAZA CAMINO REAL, a limited partnership, organized under the laws of the State of California (tlOperatortt) , with reference to the following facts ar,d circumstances: A. City, Parking Authority, and Operator are parties to The Plaza Camino Real Public Parking Lot Operating Agreement dated November 24, 1969 as amended by an amendment thereto dated August 3, 1978 (the "Operating Agreementtt) , whereby City and Parking Authority contracted for the operatior? by Operator of a certain parking lot leased to City by the Parking Authority pursuant to a Lease Agreement dated August 21, 1969 as amended by an amendment thereto dated August 3, 1978 (the "Lease Agreementtt). 8. City and Parking Authority have entered into a Second Amend- ment to Lease Agreement, of even date herewith, whereby a portion of the parking lot therein referred to as Exchange Parcel X will be released from the Lease Agreement and certain other property therein referred to as Exchange Parcel Y will be included within the property -1- EXHIBIT F I -4 covered by the Lease Agreement upon the recordation of certain deeds, as therein described. C. City, Parking Authority, and Operator desire'that concur- rently with the release of Exchange Parcel X from the Lease Agree- ment and the inclusion of Exchange Parcel Y within the property covered by the Lease Agreement, Exchange Parcel X shall be released from the Operating Agreement and Exchange Parcel Y shall be included within the property covered by the Operating Agreement. D. Said Second Amendment to Lease Agreement also provides for the inclusion of Exchange Parcel X within the property covered by the Lease Agreement upon reentry of said parcel pursuant to the right of reentry contained in the deed of Exchange Parcel X to Plaza Camim Red and fcr the release of Exchange Parcel Y from the Lease Agreement upon reentry of said parcel pursuant to the corresionding right of reentry contained in the deed of Exchange I Parcel Y to the Parking Authority. NOW, THEREFORE, the parties agree as follows: 1. Concurrently with the release of Exchange Parcel X from the Lease Agreement and the inclusion of Exchange Parcel Y within the Lease Agreement, pursuant to the aforementioned Second Amendment to Lease AgreemeRt, Exchange Parcel X shall be released from the Operating Agreement and Exchange Parcel Y shall be covered by the Operating Agreement. 2. If Exchange Parcel Y shall be released from the Lease Agreement pursuant to the provisions thereof dealing with reentry, then, in that event, automatically and without the necessity of any 10/20/78 -2- further action by any person, Exchange Parcel Y shall be released from the Operating Agreement. If Exchange Parcel X shall be included within the property covered by the Lease Agreement pursuant to the provisions thereof dealing with reentry, then, in that event ,auto- matically and without the necessity of any further actior? by any person, Exchange Parcel X shall be covered by the Operating Agreement. 3. Except as so amended, the Operating Agreement remains in full force and effect. IN WITNESS WHEREGF, City, Parking Authority and Operator have caused this Second Amendment to Plaza Camino Real Public Parking Lot Operating Agreement to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed as of the date firsf; above writter?. CITY OF CARLSBAD PARKING AUTHORITY OF THE CITY OF CARLSaAD .. . 10/20/78 BY PLAZA CAMINO REAL, a limited partnership BY -3- , GUARANTY THE MAY STORES SHOPPING CENTERS, INC., a Missouri corporation authorized to do business in the State of California, hereby guarantees Plaza Camino Real's (ttDevelopertt) obligations under Paragraph 10 of that certain Second Exchange Agreement and Escrow Instructions, dated , among Geveloper, the City of Carlsbad (ItCitytt), and the Parking Authority of the City of Carlsbad ("Parking Authoritytt), and further agrees to furnish security in favor of City and Parking Authority guaranteeing the obligations set forth in said Agreement to improve for parking purposes the land therein referred to as Exchange Parcel Y, as set forth therein. Said security to be a surety bond in the amount of $150,000. Dated : 8/20/78 THE MAY STORES SHOPPING CENTERS, INC., a Missouri corporation BY EXHIBIT C . Covenants, Conditions, Restrictions Easements and Reservations (Exchange Parcel Y) 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 recorded July 28, 1979, Recorder's File No. 135915. By an instrument recorded August 15, 1978 as Recorder's File No. 78-346433, said Agreement was amended. 2. An Agreement to which reference is hereby made for full particulars : Dated : July 28, 1969 By and Between: Plaza Carnino Real, a California limited partner- ship, The May Department Stores Company, a New York corporation, and J. C. Penney Company, Inc. , a Delaware corporation. Regard ing : Construction, operation and reciprocal easements Recorded : 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 File NO. 76-354986. 3. All matters shown on the final map for Carlsbd Tract No. 4. An Agreement to which reference is hereby made for full CT 76-18. particulars: Dated : August 15, 1978 By and Between: Plaza Camino Real, a California limited partner- ship, The May Department Stores Company, a New York corporation, J.C. Penney Company, Inc., a Delaware corporation, Sears, Roebuck and Co., a New York corporation, Federated Department Stores, Inc., a Delaware corporation and Carter Hawley Hale Stores, Inc., a California corporation. 11/10/78 EXHIBIT H ? *b Regarding : Amended and Restated Construction, Operation and Reciprocal Ebsenietit Agreement. Recorded : August 15, 1978 as Recorder's File No. 78-346427 5. Easements set forth in Memorandum of Lease between Plaza Cainino Real, a California limited partnership and Sears, Roebuck and Co., a New York corporation and easements set forth in a deed frori: Plaza Caniino Rea1 to Federated Department Stores, Inc., a Delaware corporation, recorded on August 15, 1978 as Recorder's File Nos. 78-346426 and 78-346419, respectively. 11/1O/7 8 -2- I ' _. *" Covenants, Conditions, Re.3trictions Easements and Reservations (Exchange Parcel XI 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 recorded July 28, 1979, Recorder's File No. 135915. By an instrument recorded August 15, 1978 as Recorder's File No, 78-346433, said Agreement was amended. 2. An Agreement to which reference is hereby made for full par ticul ar s : Dated : July 28, 1969 By and Between: Plaza Camino Real, a California limited partner- ship, The May Department Stores Company, a New York corporation, and J.C. Penney Company, Inc., a Delaware corporation. Regard i ng : Construction, operation and reciprocal easements Recorded : 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 File NO 76-354986. 3. All matters shown on the final map for Carlsbd Tract No. CT 76-18. 4. An Agreement to which reference is hereby made for full particulars : Dated : August 15, 1978 By and Between: Plaza Camino Real, a California limited partner- ship, The May Department Stores Company, a New York corporation, J.C. Penney Company, Inc., a Delaware corporation, Sears, Roebuck and Co., a New York corporation, Federated Department Stores, Inc., a Delaware corporation and Carter Hawley Hale Stores, Inc., a California corporation. 1?/ 10 /7 8 EXHIBIT I . ?, : .*- Regarding : Amended and Restated Construction, Operation and Reciprocal Easement Agreement. Recorded : August 15, 1978 as Recorder's File No. 78-346427 5. Memorandum of Lease between Plaza Camino Real, a California limited partnership and Carter Hawley Hale Stores, Inc., a California corporation recorded August 15, 1978 as Recorder's File No. 346425. 6. Memorandum of Agreement to SelUPurchase between Plaza Camino Real, a California limited partnership and Carter Hawley Hale Stores, Inc. , a California corporation, recorded August 15, 1978 as Recorder's File No. 346435. 11/10/78 -2- , ! e I 4 . E 1C 13 1s 2c 21 2% 23 24 25 26 27 28 , . RESOLUTION NO. 5625 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING THE EXECUTION OF A SECOND EXCHANGE AGREE- MENT AND ESCROW INSTRUCTIONS AND ALL RELATED DOCUMENTS MADE EXHIBITS THERETO BETWEEN THE CITY OF CARLSBAD, THE PARKING AUTHORITY AND THE PLAZA WINO REAL TO EFFECT THE BROADWAY LAND EXCHANGE. WHEREAS, the Agreement dated 5 November 1975, as amended, by and between the City of Carlsbad, Parking Authority and Plaza Camino Real provides for the expansion of the Plaza Camino Real . Regional Shopping Center; and WHEREAS, the Fifth Supplement to said Agreement provides for an exchange of land between the parties to create a site which will accommodate a Broadway Department Store; and WHEREAS, a Second Exchange Agreement and Escrow Instructions has been prepared which is acceptable to all parties and which will carry out the contemplated land exchange: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the Second Exchange Agreement and Escrow Instructions between the City of Carlsbad, Parking Authority and Plaza Camino Real, which is on file with the City Clerk and incorporated by reference herein, is hereby approved. 3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. 4. That the Mayor of the City of Carlsbad is hereby authorized b L cv L -c v 1 2 3 -4 *I 5 ‘6 7 8 9 10 11 19 20 21 22 23 24 25 26 27 28 and directed to execute the Second Amendment to Lease Agreement and Second Amendment to Plaza Camino’Real Public Parking Lot Operating Agreement attached as Exhibits D and F respectively to the Second Exchange Agreement and Escrow Instructions for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 21st day of November , 1978 by the following vote, to wit: AYES : Councilmen Packard, Skotnicki, Anear, Lewis and NOES : None Councilwoman Casler i - /“RONALD C. PACKARD, Mayor ATTEST : (SEAL) . . 2,