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HomeMy WebLinkAbout1987-05-12; City Council; 8823-2; Hosp Grove AcquitsitionT3 OJ »> •H •H +J V4 CU . y xl •H L o 0) .£> 5-1 •H O a iH CO •H (U M O cd ti MH ti O CO •M O CtJ •H CLJ) OJ CO CO Id O 00 ti rH C c cd O :3 •H rH • cd ti OJ Cd Td ti Cd S-I CO CO C o CU CO O 4J •H <u •H 4J 4-t o 4-1 <3 S-I <u o cd (U (X, CO 4-) cu •H rH CU CJ rH +-> Cd 4-1 0) 4-1 o o 4J rP 0) M-t CD S-i CO O 4-» ;3 cd ti +j CO CU •H 4-1 .J^ p. U ti ti 0) Cd o 0) o 6 o P. X Q) Td X Q) >-l CU rH 4-) rH rH Xl •H Cd Cd QJ O »-l N >-l o MH •H ti O U CU <u O ,n .ti ti ^ =3 4-1 o •H X! +J Cd 4J ti J-i •H O Xl cd ^ CU C 13 X cd O CU O 00 e ti o e cd 4-» o o Td 4J M-4 o O o QJ o }-l o •r-1 CU cd rQ 4-) ti 4-1 ti CD CD CU •H <u rH psi 'd M (U M nd 00 CO 0) •H 0) •M > > eu <u o o u S-I C3 cd •H CO cd DH iH >^ 13 CD •H cd O a tti Pi o <u •H (U o XI 4J IS 4-1 cm ')F CARLSBAD — AGENDA-«ILL 00 I (N rH I m O < o z o o AB# 8823-2 MTQ,S/12/87 DEPT. CA TITLE: HOSP GROVE ACQUISITION DEPT. HP. CITY ATTYV/JD CITY MGR. 2^^^ RECOMMENDED ACTION: If the City Council wishes to complete the acquisition of Hosp Grove your action is to adopt Resolution No. 9^^/^ approving the acquisition agreement and authorizing the expenditure of the necessary funds. ITEM EXPLANATION The City Council at your meeting of December 4, 1986 adopted Resolution No. 8900 asking the City's voters to approve the acquisition of Hosp Grove. The agenda bill before the Council at that meeting contained a letter of intent with the terms and conditions for the acquisition negotiated by the Council committee. The Council's action in adopting the resolution constituted approval of the letter and directed our office to proceed with completing the transaction if the voters approved. Since the election, our office has been working with the property owner and developers to prepare the documentation necessary to complete the acquisition. That process has been held up because of difficulties encountered in our efforts to secure dismissal of the Friends of Hosp Grove lawsuit. The agreement with the property owner/developers calls for a close of escrow on or before June 2, 1987. If that date cannot be met the price increases $150,000. In an attempt to meet that deadline we are bringing the documentation forward for Council approval recognizing that all of the problems have not yet been resolved. A further report will be given to the Council at your meeting of May 12, 1987. It may be necessary to continue the matter or, in the alternative, approve it with conditions or contingencies. The documents are consistent with the letter of intent previously approved by the Council and we recommend their approval. If the City Council concurs, your action is to adopt Resolution No. 9«p<fc<f' approving the acquisition agreement and authorizing the expenditure of the necessary funds. EXHIBIT Resolution No. December 4, 1986 Letter of Intent Acquisition Agreement (to be distributed separately) December 4, 1986 City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Attention: City Manager Gentlemen: Reference is made to that certain Agreement for Purchase and Sale of Real Property, dated as of July 10, 1986, bv and between the undersigned as "Seller" and the City of Carlsbad ("City") which Agreement, together with the exhibits attached thereto, is herein referred to as tha. "Agreement". All references herein to defined terms shall have the same meaning as set forth in the Agreement. Seller and City desire to enter into an agreement relative to the sale of the Property by Seller to the City, in lieu of condemnation, which will suoercede the Agreement, and this letter shall constitute a letter of intent between the Seller and the City with respect to the terms and conditions of such sale. Notwithstanding anything to the contrary contained herein,'the Agreement shall not be superceded until such time as a definitive agreement incorporating the terms and conditions of this letter of intent is executed by all parties thereto. 1. City hereby agrees to cause a ballot measure ("Ballot Measure") to be submitted to the voters of the City at a special election to be called in March, 1987. The Ballot Measure shall authorize the City to acquire the Property for cash and for the "Purchase Price" (as hereinafter defined) City hereby represents to Seller that the Ballot Measure shall only require a majority vote of the registered voters withm the City who vote at such election in order to be Approved. 2. Upon Approval of the Ballot Measures, City shall purchase, and Seller shall sell, the Property .for the Purchase Price. The Close of Escrow shall occur no later than ninety (90) days following the date the Ballot Measure is Approved. The Purchase Price for the Property and for the rights of The Odmark Development Company ("Odmark") in same, shall be $6,457,834.55 if the Close of Escrow for the Property occurs on or before June 2, 1987, and shall be $6,572,934.55 if the Close of Escrow for the purchase and sale shall occur at any time after June 2, 1987. The Purchase Price for the City of Carlsbad^ ^ ^ DBcember 4, 1986 Page 2 Property shall be pavabip in cash, or by certified or cashier's check, through Escrow to Seller and Odmark pursuant to paragraph 4.(c) hereof. 3. The Escrow shall be established with the Escrow Holder as set forth in the Agreement. 4. The City's obligation to acquire the Property, and Seller's obligation to sell the Property, shall be subject to and conditioned upon the satisfaction of the following conditions: (a) Approval of the Ballot Measure, it being understood and agreed, however, that the authorization of the City by the voters to raise the necessary revenues to finance the acquisition of the Property shall not be a condition precedent to City's obligations hereunder. (b) Each of the City and Seller shall have obtained from Odmark, in the case of Seller, a full and complete release by Odmark of Seller of any and all claims, liabilities, damages, etc., under or arising out of the Agreement for Purchase and Sale of Real Property and Escrow Instructions between Seller and Odmark (as amended) ("Odmark Purchase Agreement"), and in the case of the City, and subject to the purchase price and other terms and conditions of the-definitive agreement referenced above, a complete assignment of all rights held by Odmark under the Odmark Purchase Agreement together with a complete release from any and all claims, liabilities, damages, etc., arising out of or resulting from such actions as the City may have taken with respect to the approval or disapproval of Odmark's applications for development of the Property, or any portion thereof. Each of City and Seller agree to use their respective good faith and diligent efforts in order to obtain such agreements from Odmark. (c) In the event the City purchases the Property pursuant to this letter of intent and the definitive agreement referenced above, escrow proceeds shall be disbursed as follows: (i) To Seller, $5,755,000.00 ($5,870,100.00 if after June 2, 1987) for the Property, subject to Seller remitting to Odmark deposits paid to Seller under the Odmark Purchase Agreement; (ii) To Odmark, the sum of $702,834.55 in consideration of Odmark's assignment of all rights under the Odmark Purchase Agreement, (except the return of deposits as noted below), together with a release from any and all claims, liabilities, damage, etc. referenced in paragraph 4.(b) above. Upon Seller receiving the amounts payable to it as aforesaid. Seller shall remit to Odmark the deposits previously paid to Seller under the Odmark Purchase Agreement. City of Carlsbad(^ December 4, 19 86 Page 3 5. Upon the Property Close of Escrow, Seller and City shall 7. deliver to each other an executed Agreement for Settl Of ement Exh^bi^r^D^^ to'the^^^:iee':^^t!^^ substantially in the form of In the event the Ballot Measure is not Approved, and in the C?tv IthHS'/^^^^^^ Referendum presently submitted ?o the City (the "Referendum Measure") pertaininQ to the Discretionary Governmental Approvals heretofore granted by at^h^Lo^"?^ qualified, or if qualified, is not Approved ?irst%nh^?i^ /i^^'^i^'' ''^^^^ ^"^^ Referendum Measure is first submitted to the voters for Approval, the Citv shall purchase from Seller, and Seller shall sell to CUy^ Parcel F on the terms set forth in Section 3.0 of the Agreement it being understood and agreed that the Discretionary anrv^T?H?f^-'^^^''r^^5 ^^^^l ^^^"'^^ t° h^^e ^^^^ lawfully and validly issued and may be utilized by Seller. In the event th^ "^r^^^ Approved, and in the further event the aforesaid Referendum qualifies and is Approved, (thereby purportedly rescinding the Discretionary Governmental Approvals): (a) Seller shall have the right to terminate its-obligation to convey Parcel F to the Citv with the same force and effect as Seller's right to terminate the Agreement pursuant to Paragraph 3.3 of the Agreement upon K ? °! Discretionary Governmental Approvals to have been lawfully and validly issued and Approved as providedm said Paragraph 3.3. and (b) upon such termination all parties shall have preserved all rights and respective positions in accordance with the so-called "Stand hereto between the parties Seller and Odmark agree that, should the City determine it appropriate so to do, the City may defer taking action' concerning the Referendum Measure until after the special election to be called concerning the Ballot Measured dTli^Lrf^^^^J^ ^r^^ ""^^ ^^^^^ respective good faith and inii^^^^ ^^""^^ ^ definitive agreement incorporating the terms and conditions of this letter of o^^K^' agreed, however, that with the exception of «5! covenants, representations and warranties herein f^f^? K ^ presently operative, this letter of intent shall have no force and effect until such time as such definitive agreement is executed by the parties and delivered to each other. It is further agreed that the terms and conditions of the Stand Still Agreement shall remain in full force and effect until written notice of its termination is given by either of the parties to the other, pursuant to paragraph 7. thereof. orner. City of Carlsbad December 4, 1986 / Page 4 GROVE APARTMENTS INVESTMENT CO. a partnership By: Its: H.F.H. LTD., a California limited partnership By: Its: General Partner HARRY J.L. FRANK, JR, BERNARD CITRON TRUST By: Its: FRED A. BARTMAN, JR. MARITAL TRUST UNDER THE WILL OF WILLIAM S. BARTMAN By: Its: RESIDUARY TRUST UNDER THE WILL OF WILLIAM S. BARTMAN By: Its: City of Carlsba December 4, ]986 Page 5 APPROVED AS TO FORM AND CONTENT: Vincent F. Biondo, Jr., City Attorney ACKNOWLEDGED AND AGREED TO: THE ODMARK DEVELOPMENT COMPANY By: Ted P. Odmark, President ONE FIRST VATIO.VAL PLAZA CHICAOO, ILLINOIS 60603 .•312: 8S3-7000 TELEX 2S-«i364 SaO MADLSON AVENUE NEW YORK, NEW YORK 10022 aia: -iis-aioo TELEX qr-iGSS 1722 EYE STREET, N W W.\,SHIN(iTON, D f aoOOS JOa: -12<J--1000 TELEX 89-463 SiDLEY 8c AUSTIN A PARTNERSHIP INCLCDING PROFESSIONAL CORPORATIONS 2049 CENTURY PARK EAST Los ANGELES, CALIFORNIA 90067 TELEPHONE 213: 553-8100 TELEX 18-1391 May 11, 1987 18 KI.NO WILLIAM STREET LONDO.V, EC4N 7.SA, ENC.I.AND 6Sl-ieie TELE.X ^aiU.'S 5 SHENTON WAY SINC-rAPORE OlOB 65: 22-1-50Q0 TELE.X a H 7.1 PO BOX 86."50 RIYADH, SAI D! ARABIA <DS6-l-463-4160 TELE.X 104947 Vincent Biondo, Esq. City Attorneys Office 1200 Elm Avenue Carlsbad, California 92008 John D. Thelan, Esq. Peterson, Thelan & Price 530 B Street Suite 2300 San Diego, California 92101 Gentlemen: Enclosed are copies of the following documents with the changes listed by page and paragraph numbers. Restated Agreement for Purchase and Sale: Page 7, Paragraph 2.2 - The word "prorated" is changed to "paid by Seller". Insert on Line 3 is as follows: "Escrow shall notify the County of San Diego that the Property has been sold to a public entity, and shall request cancellation of any real property tax or assessment obligations which otherwise would be required from and after Close of Escrow." Page 7, Paragraph 2.3 - Deleted. Now reads as follows: "City shall pay one half of the Cost of Escrow and Odmark and Seller shall each pay one quarter. Seller shall pay the Expense of any local documentary taxes. Recording and other miscellaneous costs and expenses shall be shared in accordance with the custom of the Escrowholder." Page 7, Paragraph 3.0 - The words "presently own" now reads "have owned." The words ",Seller may elect to cause..." now reads ",Seller has caused or will cause..." The words "...hereby may take place..." now reads "...hereby will take place..." Page 11, Paragraph 6.1 - the words "October 28, 1986 in" are deleted. Page 18, Paragraph 8.10 - The words "...Official 0" S I D L E Y 8: A U S T I X Los Axo 1-: I. f-; s Vincent Biondo, Esq Page 2 Records of Los Angeles County." now reads "...Official Records of San Diego County." Page 20, Paragraph 8.15 - Deleted. Settlement Agreement and Release between Carlsbad, Grove Parties, and Odmark , 1987," now Page 1, opening paragraph - '\ reads "May, 1987," ^ Page 2, Paragraph 1.4 - The words "Certain of the partners..." now reads "The partners..." Page 9, Paragraph 1.30 - The words "...has been or will be duly entered therein;" now reads "has been duly entered therein;" Page 13, Paragraph 2.4 - The words "...paragraph 2.6 below," now reads "...paragraph 2.6D below," and Paragraph 2.5 - "...paragraph 2.6..." now reads "...paragraph 2.6D..." Settlement Agreement between the foregoing and Collins Page 2, Pagraph 1.4 - The words "Certain of the partners..." now reads "The partners..." Settlement Agreement Involving the Friends of Hosp Grove Litigation Page 1, Opening Paragraph - The words "...herein- after referred to as..." now reads "...hereinafter some- times referred to collectively as..." Page 2, Paragraph 1.4 - The words "Certain of the partners..." now reads "The partners..." Page 5, Paragraph 1.17 - The words "On or about October 28, 1986, the City..." now reads "In connection therewith, the City..." The words ",Land UK Plan," now reads ",Land Use Plan," Page 6, Paragraph 1.19 - The words "Hereafter the parties involved in Civil Action No. 35426 agreed SID LEY <Sc AUSTIN^ Vincent Biondo, Esq Page 3 Los AXOELES to continue various dates and to preserve their rights and arguments, with regard to said Action, pending the results of an election involving,..." now reads "There- after the parties to Civil Action No. 35426 agreed to continue various dates and to preserve their rights, claims, and arguments in and/or with regard to said Action pending the results of an election to be held involv- ing, ..." Paragraph 1.21 - The words "...Property." now reads "...Property and Odmark Rights." Page 7, Paragraph 2.0 - On Line 4, the word "discussing" is changed to "dismissing" and on Line 5 the word "right" is changed to "real". Paragraph 2.1.2 - After the words "EIR, and..." the remainder of the paragraph is deleted and replaced with "...therefore will agree to de-certify the same;" Paragraph 2.1.3 is an insert. It reads: "That it will send a 30-day written notice of any action involv- ing an attempt to use or rely on the EIR, and/or to pre- pare an addendum or supplement thereto, and/or to propose a project with the area known as Hosp Grove based on the EIR. Such notice shall be given to persons identified on Exhibit A." Paragraph 2.1.4 is also a new paragraph. It reads: "That in the future, environmental documentation of projects in the Buena Vista Lagoon Watershed will consider and evaluate the proposed project in light of the conclusions and findings of the Buena Vista Lagoon Watershed Enhancement Plan, Phase I (prepared by Brown & Vogt) and Phase II (prepared by June Applegate) in connection with other studies and technical data." Page 9, Paragraph 2.3 - A new paragraph which reads: "Without limiting the foregoing, Carlsbad waives all Statutes of Limitations contained in Public Resources Code §21167 et. seq. with regard to the EIR. Page 10, Paragraph 2.6 - New paragraph as follows "Without limiting the foregoing Friends of Hosp Grove do hereby waive and release any and all claims they, or any of them, may have for attorneys' fees to the date hereof, including any claim under Code of Civil Procedure §1021.5, which claims shall be included within "Released SIDLEY' <Sc AUSTIN Vincent Biondo, Esq. Page 4 Los AXGELE: Matters." 2.8. Page 11, Paragraph 2.5 changed to 2.7. Page 12, Paragraph 2.6 changed to Paragraph Very truly yours, Howard J. Riibinroit /h Dictated But Not Read HJR/lm Enclosures cc: John Bartman Bill Allen 4 1 i z 4 E E 7 E s 1C 11 1; 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9068 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE AGREEMENT FOR THE ACQUISITION OF HOSP GROVE AUTHORIZING ITS EXECUTION BY THE MAYOR AND APPROPRIATING THE NECESSARY FUNDS. The City Council of the City of Carlsbad, Califrnia, does hereby resolve as follows: 1. That certain agreement between the City of Carlsbad and the property owners and developers of Hosp Grove for acquisition of Hosp Grove, marked Exhibit A and made a part hereof , is hereby approved. 2. That the Mayor is authorized and directed to executc said agreement for and on behalf of the City of Carlsbad. 3. That the City Council hereby approves expenditure of City funds as necessary to complete the acquisition of Hosp Grove. The City Manager is hereby authorized to make those funds available consistent with previous Council direction in the matter in an amount as required and at a time necessary to close the escrow in accordance with the acquisition agreement. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad held the 12th day of May , 1987, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larsoi NOES : None ABSENT: None ATTEST : ALETHA L. RAUTENKRANZ , City Clerk . THIS AMENDED AND RESTATED AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY GREEMENT is made and entered into as oL. this/&mday - of May, 1987 by and among the parties identified as Seller on the signature page hereof (herein collectively "Seller"), The Odmark Development Company, a California corporation (herein "Odmark") and the City of Carlsbad, a municipal corporation (herein "City"). WITNESSETH WHEREAS, Seller is the fee owner of certain parcels of real property in the City of Carlsbad known as Parcels D, E, E Prime, and F, each of which parcels are more particularly described on Exhibit A attached hereto and by this reference made a part hereof. Parcels D, E, E Prime and F are hereinafter sometimes collectively referred to as the "Property"; WHEREAS, Grove Apartments Investment Co. and Odmark entered into that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions, dated as of May 31, 1985, which was from time to time amended (the "Odmark Agreement"), and which provided for the sale to Odmark of Parcels D, E and E Prime. All of Odmark's right, title and c * f A - interest in, to and under the Odmark Agreement are herein- after referred to as the "Odmark Rights"; WHEREAS, Seller and City each are parties to that certain Agreement for Purchase and Sale of Real Property dated as of July 10, 1986 (the "Purchase Agreement"); WHEREAS, pursuant to the Purchase Agreement, on November 4, 1986 a ballot measure was submitted to the voters of the City of Carlsbad regarding, among other things, the acquisition of the Property by the City. Such ballot measure received slightly less than the 2/3 affirmative vote required and therefore was not approved; WEREAS, given the closeness of said vote, the City nevertheless determined to acquire the Property upon the threat, and in lieu of, condemnation of the Property, and to purchase and have assigned to it the Odmark Rights, provided it obtained the requisite vote of the registered voters within the City authorizing or approving such acquisition,; WHEREAS, the City caused the Acquisition Ballot Measure to be submitted to the voters of the City of Carlsbad at a special election held on March 3, 1987, which Acquisition Ballot Measure was approved by receiving a majority of the votes cast therefor, and which authorized the City to acquire the Property -2- and the Odmark Rights for cash and for the "Purchase Price" (as hereinafter defined); and WHEREAS, Seller and City desire to amend and restate in its entirety said Purchase Agreement solely in accordance with the terms hereof. NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter contained, and for other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree that the Purchase Agreement is hereby amended and restated in its entirety as follows: 1.0 Purchase and Sale of Property - Assignment and Acceptance of Odmark Rights. 1.1 As used herein, the term "Property Close of Escrow" denotes the time at which Seller's deed conveying title to the Property to the City is recorded. 1.2 City hereby agrees to purchase, and Seller hereby agrees to sell, the Property, and Odmark hereby agrees to assign, and City hereby agrees to accept, the Odmark Rights on or before July 3, 1987 on the terms and subject to the conditions hereinafter set forth. the Property and the Odmark Rights (the "Purchase Price") The purchase price for shall be $6,457,834.55 if the Property Close of Escrow occurs -3- f i - on or before June 2, 1987, and $6,572,934.55 if the Property Close of Escrow occurs after June 2, 1987 but before July 4, 1987. Subject to Section 3.0 hereof, the Purchase Price shall be payable in cash, or by certified or cashier's check, through Escrow and shall be disbursed as follows: To Seller, $5,755,000.00 if the Purchase Price is $6,457,834.55, or $5,870,100.00 if the Purchase Price is $6,572,934.55; to Odmark, $702,834.55. Upon the Property Close of Escrow, Seller shall immediately remit to Odmark the sum of $225,000 representing the amount of all deposits previously paid to Seller by Odmark under the Odmark Agreement. The City hereby acknowledges that it shall have no right or claim to any of such deposits. 1.3 All parties hereto shall execute and deliver to Escrow an Agreement for Settlement of Disputes and Mutual Releases (hereinafter the "Release Agreement") in the form of Exhibit B attached hereto, which Agreement shall be binding and effective upon the Property Close of Escrow. 1.4 Odmark and City shall execute and deliver to Escrow an Assignment of the Odmark Rights in the form of Exhibit C attached hereto, which Escrow shall deliver to the City upon the Property Close of Escrow. -4- Y. i * 1.5 Not later than five (5) business days follow- ing the execution hereof, Seller, City and Odmark shall open an escrow ("Escrow") with First American Title Insurance Company ("Escrowholder") and shall deposit with Escrowholder fully executed counterparts of this Agreement for use as Escrow Instructions, together with Escrowholder's usual form of supplemental escrow instructions (if any) for transactions of this type; provided, however, that such supplemental instructions shall be for the purpose of implementing this Agreement and such instructions shall incorporate this Agreement by reference and shall specifically provide that no provision thereof shall have the effect of modifying this Agreement unless it is so expressly stated and initialed on behalf of City, Seller, and Odmark. By such deposit, Escrowholder is hereby authorized and instructed to act in accordance with the provisions of this Agreement. Seller, City, and Odmar-k shall each deposit such other instruments, documents and fdnds as are necessary to effect the close of escrow in accordance with the terms hereof. 1.6 The parties hereto acknowledge and agree that the Revised Stipulated Judgment by and between Seller and the City dated September 9, 1986, (the "Revised Stipulated Judgment") IS and shall remain in full force and effect pending the Property Close of Escrow, and that, thereafter, the rights of the parties hereto thereunder shall terminate -5- f 1 * except as expressly provided in paragraph 2.6 of the Release Agreement (Exhibit B). The parties acknowledge and agree that, upon the Property Close of Escrow, the so-called "Stand Still Agreement" by and among the parties, dated July 10, 1986, shall automatically terminate and be of no further force and effect as to the rights of any party hereto con- cerning the Property. 2.0 Policy of Title Insurance. 2.1 At the Property Close of Escrow, Seller shall furnish through the Escrowholder, at Seller's expense, a CLTA Standard Coverage Owners' Policy of Title Insurance for the Purchase Price (excluding the amount allocated to the Odmark Rights) from First American Title Insurance Company insuring title to the Property vested in City, subject to those matters ("Permitted Exceptions") identified on Exhibit D hereto, and the lien of taxes not delinquent. Seller believes that it will be able to deliver a title policy at the appro- priate Close of Escrow in accordance with the requirements hereof. If, however, the title company shall be unwilling to issue such policy in such condition, City may waive the discrepancy and close this transaction in accordance with its terms, or object to the discrepancy, in which case the trans- action (and all of the City's obligations hereunder) shall terminate, and Seller shall not be liable to City for damages. -6- f i 2.2 Real property taxes and assessments shall be aid by Seller through the Close of Escrow based on the latest tax information available to Escrowholder. Escrow shall notify the County of San Diego that the Property has been sold to a public entity, and shall request cancellation of any real property tax or assessment obligations which otherwise would be required from and after Close of Escrow. Seller shall convey title to the City in and to the Property by grant deed; provided, that such grant deed shall recite that it is made subject to all matters of record and the Permitted Exceptions. 2.3 City shall pay one half of the Cost of Escrow and Odmark and Seller shall each pay one quarter. Seller shall pay the Expense of any local documentary taxes. Recording and other miscellaneous costs and expenses shall be shared in accordance with t1.e custom of the Escrowholder. 3.0 Exchange of Property. 3.1 The parties identified herein as Seller have owned the Property (other than Parcel F) as partners of a partnership, and own Parcel F as shown on Exhibit F. Prior to the Property Close of Escrow, Seller has caused or will cause such partnership to distribute the Property to the respective Sellers so that the transactions contemplated -7- i hereby will take place at the individual partner level. Accordingly, each individual partner is a separate Seller even though it is agreed that the respective closing with each of the Sellers are to be concurrent and conditional upon one another. In addition, each Seller shall have the right as to his interest (or any portion thereof) in the Property, to elect to cause the transaction as to such interest or any such portion(s) to close as a "tax free exchange" pursuant to the provisions of Section 1031 of the Internal Revenue Code. In the event that any such Seller shall elect to cause the transaction to close as a "tax free exchange", City and such individual Seller agree that no such exchange shall delay any Close of Escrbw hereunder; and each Seller agrees that the City shall be indemnified from any expenses or cost which may be incurred in connection with such exchange. 4.0 Condition of Property. 4.1 City acknowledges that neither Seller nor Odmark, nor any of Seller's or Odmark's employees, agents or representatives have made any warranties or representations concerning or regarding the suitability of the Property for construction or support of structures of any type, its use as a public recreational facility, or for any other purpose or use. -8- e a f 1 5.0 Representations and Warranties. 5.1 The City hereby represents and warrants to Seller and Odmark as follows: 5.1.1 City has the full and lawful power and authority to enter into this Agreement and consummate the transactions contemplated hereby and by the Acquisition Ballot Measure. 5.1.2 The City has completed the required environmental documentation in compliance with the California Environmental Quality Act, relative to the acquisition of the Property, and the City's Planning Commission has made the requisite finding relative to the acquisition of the Property pursuant to California Governmental Code Section 65402. 5.1.3 The City has no present intention to develop the Property other than for park and/or open space purposes. 5.2 Odmark hereby represents and wa-. Lrants to Seller and City as follows: 5.2.1 Odmark is a corporation duly organized and validly existing and in good standing under the laws of the State of California and has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. 5.2.2 All necessary or appropriate corporate acts and procedures required for authorization, execution and -9- I 1 delivery of this Agreement by Odmark have been lawfully and properly taken. 5.2.3 Other than an assignment to Collins Development Corporation ("Collins"), Odmark has not assigned (a) the Odmark Rights and/or Odmark Agreement, or (b) any claims that it may have under, arising out of, or in connection with Odmark's attempts to develop the Property, and/or the Odmark Agreement, and/or the Odmark Rights. 5.3 Seller hereby represents and warrants to the City and Odmark as follows: 5.3.1 That as to that portion of the Property other than Parcel F, and subject to paragraph 3.0 above, it is a general partnership organized and existing under the laws of the State of California, having its principal place of business in the County of Los Angeles, California, and is authorized to execute this Agreement on behalf of Selle-. 5.3.2 That those persons identified as Seller have among them persons with the full authority necessary to fully and completely convey all right, title, and interest in Parcel F to City. 5.4 All representations and warranties contained in this Agreement and any of the Exhibits hereto made by any of the parties hereto shall survive the Property Close of Escrow. - 10- f I 6.0 Rescission of Government Actions, Dismissal of Litigation, Assumption of Liabilities, Indemnities, and Release of Claims. 6.1 Seller, Odmark and City hereby agree that, upon the Property Close of Escrow, City shall rescind the actions and decisions of the City Council of the City certi- ying a Final Environmental Impact Report concerning the proposed development of the Property, and approving a General Plan Amendment, Land Use Plan, Site Development Plan, zone changes, and Master Plan amendments concerning the Property which were and are the subject of a referendum petition (the "City actions and decisions"). 6.2 Seller, Odmark and City shall, upon the Property Close of Escrow, each release any claims it may have against any other party hereto with regard to any of the City actions and decisions. 6.3 Seller, Odmark and City hereby agree that, upon the Property Close of Escrow, Seller and Odmark shall file a Request for Dismissal of Civil Action No. N362.15, entitled Odmark Development Company, et al. v. City of Carlsbad, et al., each party to bear its own costs. -11- 1 1 6.4 Seller, Odmark and City hereby agree to execute the Agreement for Settlement of Lawsuit and Releases attached hereto as Exhibit H, and hereby authorize their attorneys to execute and cause to be filed a Request for Dismissal Without Prejudice of the action entitled "Friends of Hosp Grove, etc. v. City of Carlsbad, being Civil Action No. N35426 in the San Diego Superior Court. 6.5 Upon the Property Close of Escrow, City shall execute and deliver to Seller and Odmark concurrently with the close of such Escrow, a general release of Seller and Odmark and of their agents, employees and partners (in the form of Exhibit B) from any and all claims, losses or demands of any kind whatsoever arising out of or connected with the condition of the Property previously or hereafter existing or occurring upon the Property or unsuitability of the Property for any use, and hereby agrees to hold Seller and Odmark harmless from any such claims, etc. brought by a purchaser or user of any of the Property from City, except any claims, etc. arising from any negligent acts of Seller, Odmark or their agents. 6.6 Odmark agrees to indemnify, defend and hold Seller and the City, or either of them, harmless from and against any and all claims, demands, suits, loses, damages, costs, expenses (including attorneys' fees), and liabilities -12- e < I which may be imposed on, incurred by, or asserted against Seller or the City, arising out of or in connection with or based on Odmark's breach of the warranties and representa- tions contained in paragraph 5.2.3 above, and further agrees to obtain from Collins and to deliver to Escrow an Agreement and Release in the form of Exhibit G attached hereto. 6.7 City hereby agrees (a) to release and discharge Seller from any and all of the obligations of Seller under the agreements identified on Exhibit E hereto, and (b) to assume and fully and timely perform all of the obligations of Seller under the agreement identified on Exhibit E-1 hereto. 7.0 Miscellaneous. 7.1 Attorneys' Fees. If either City, Seller or Odmark commences an action against the other to enforce any of the terms of this Agreement or because of the breach by City, Seller or Odmark of, or any dispute concerning, any of the terms hereof, or if Escrowholder commences any action with regard to the Escrow, the losing or defaulting party shall pay to the prevailing party (and to Escrowholder in the case of any action by Escrowholder) reasonable attorneys' fees, costs and expenses incurred in connection with the prosecution or defense of such action. -13- 7.2 Notices. All notices, deliveries and demands of any kind which any party may be required or may desire to give or serve upon another shall be made in writing and shall be delivered by personal service or sent by registered or certified mail, postage prepaid, return receipt requested, to the address of that party set forth below: If to City: City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008-1989 Attention: City Manager Vincent E'. Biondo, Esq. With a copy to: City Attorney City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008-1989 Attention: City Manager 10738 W. Pic0 Boulevard Suite 3 Los Angeles, California 90064 Sidley & Austin 2049 Century Park East, 35th Floor Los Angeles, California 90067 Attention: Howard J. Rubinroit, Esq. and If to Seller: HFH, Ltd. With a copy to: John Bartman 9601 Wilshire Boulevard Suite 810 Beverly Hills, California 90210 Odmark Development Company 1747 Hancock Street, Suite B San Diego, California 92101 530 "B" Street San Diego, California 92101-4454 Attention: John D. Thelan, Esq. If to Odmark: With a Copy to: Peterson, Thelan & Price - 14- a 1 1 Any such notice sent by mail shall be deemed to have been received by the addressee on the fifth business day after posting in the United States mail unless actually received earlier. A party may change its address by giving the other parties written notice of its 8.0 General Provisions. new address as herein provided. 8.1 default by any any failure or Effect of Waivers and Consents. No waiver of party or parties hereto shall be implied from omission by a party or parties to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver, and that only for the time and to the extent therein stated. One or more waivers of any covenant, term or condition of this Agreement by a party or parties shall not be construed to be a waiver of any subsequent breach of the same or any other covenant, term or condition. The consent or approval by any party or parties shall not be deemed to waive or render unnecessary the consent to or approval by said party or parties of any subsequent or similar acts by a party or parties. 8.2 Modification of Agreement. This Agreement may be amended, modified or changed only by a written instrument signed by City, Seller and Odmark. In the event of any -15- I 1 conflict between the provisions of this Agreement and any subsequent escrow instruction, as such may be amended from time to time, this Agreement shall control as between City, Seller and Odmark unless the escrow instructions expressly state that this Agreement is being amended thereby and said escrow instructions are signed by City, Seller and Odmark. 8.3 Construction of Agreement. The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. of Sections and Subsections of this Agreement are solely for the convenience of the parties and are not a part of this Agreement. When required by the context, whenever the singular number is used in this Agreement, the same shall include the plural, and the plural shall include the singular; the masculine gender shall include the feminine and neuter gende'rs and vice versa; the word "person" shall include corporation, partnership or other form of association; and the words "City", "Seller" and "Odmark" shall include the respective heirs, personal representatives, successors and assigns, if any, of them. Headings at the beginnings 8.4 Choice of Law. This Agreement and the trans- action herein contemplated shall be construed in accordance with and governed by the laws of the State of California -16- I applicable to instruments in all respects made, delivered, and to be performed solely within the State of California. 8.5 Merger of Prior Agreements and Understandings. This Agreement, the Revised Stipulated Judgment, and the Exhibits hereto and thereto contain the entire understanding between the parties relating the purchase of the Property and assignment of the Odmark Rights and all prior or contempor- aneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 8.6 Further Acts. Each party, upon the request of the other, agrees to perform such further acts and to execute and deliver such other documents and instruments as are reasonably necessary to carry out the provisions of this Agreement. 8.7 Severance. Should any portion of this Agreement be declared invalid and unenforceable, then such portion shall be deemed to be severed from this Agreement and shall not affect the remainder thereof. 8.8 Rule Against Perpetuities. The transactions contemplated hereby must be consummated, if at all, within the time permitted by the Rule Against Perpetuities, -17- I 1 1 including modifications thereof, currently in force in the State of California. 8.9 Incorporation of Exhibits. Exhibits A through H are hereby incorporated into this Agreement as if set out in full at the reference thereto herein. 8.10 Memorandum of Agreement. Subject to the following sentence, City shall not record this Agreement or any evidence hereof. However, at the request of City, Seller and Odmark shall execute a memorandum with respect to this Agreement which City is hereby authorized to cause to be recorded in the Official Records of San Diego County. memorandum shall not change or otherwise affect any of the obligations or provisions of this Agreement. Such 8.11 ExecutSon in Counterparts. This Agreement may be signed in counterpLrts with the same effect as if all parties hereto had signed the same signature page. All counterparts shall be construed together and shall constitute one Agreement. detached from any counterpart without impairing the legal effect of any signatures thereon, and may be attached to another counterpart identical in form thereto but having attached to it one or more additional signature pages. Any signature page of this Agreement may be - 18- 1 I 8.12 Effect of Agreement to Purchase Price. City agrees that it will not argue in any legal or equitable proceeding between it, Seller and Odmark, or any of them, that Seller's and Odmark's agreement herein to the Purchase Price (as it relates to both the Property and the Odmark Rights, respectively), or Seller's and Odmark's execution of this Agreement is evidence of the fair market value of the Property or of the Odmark Rights. 8.13 Limitation of Remedies. It is hereby agreed that other than as a result of the City's failure to purchase the Property at the Property Close of Escrow and/or to pay the Purchase Price specified herein, no party hereto shall have the right to recover or seek recovery of damages from the other by reason of any breach or default by such other party of any of the terms of this Agreement, and that the sole recourse for any such breach or default shall be to seek non-compensatory relief, including, but not limited to by way of writ of mandamus or prohibition, declaratory relief, injunctive relief, specific performance, contempt, or similar remedies. 8.14 Purchase Agreement Superseded. Upon the full execution of this Agreement by the parties hereto and the delivery of this Agreement to each party, this Agreement shall automatically supercede the Purchase Agreement; the Purchase -19- Agreement shall be of no further force and effect; and Seller and City shall be relieved of all obligations under the Purchase Agreement. 8.15 Survival. The representations and warranties contained herein shall survive the Property Close of Escrow. IN WITNESS WHEREOF, City, Seller and Odmark have executed, or caused this Agreement to be executed by their duly authorized officers, agents or representatives, as of the day and year first above written. GROVE APARTMENTS INVESTMENT CO. a partnership H.F.H., LTD., a California limited partnersha , - Its: General Partner BERNARD CITRON TRUST -20- a 8 ARITAL TRUST JNDER THE WILL OF WILLIAM S. BARTMAN RESIDUARY TRUST UNDER THE WILL OF WILLIAM S. BARTMAN By : THE ODMARK DEVELOPMENWPANY City Attorney, City odCarlsbad PETERSON, THELAN & PRI / John Thelan SIDLEY & AUSTIN Howard J. kubinroit HJR187B -21- I EXHXE1T A PARCELS D, E an2 E PRIME LE G.:L SL S C F.1 FT I@?;;S ?- PARCEL 1 fortions of Lots 8, 9, 10, 11, 12, 13, 14, 15 and 16 in Rosp Eucalyptus Forest Cotpang'r Tract Kc, 1, ir. the City of C&r1stad, C0ur.t~ of Say. Diego, State of California, accordinf to Rap thereof No. 1136, filet in thc Office of the County Recorder of San Diego County, Jme 6, 1906, described as follovs: am~ncing at the Southeast corner of said Tract, thence along the East line of said Korth OO'S6'20" East, 2263.66 feet, raid point being South 00°56*20" Vest, 114.74 feet fron the Vert Quarter corner of Section 32, fovnship 11 South, &age I Nest, San Dernardino Bare 8nd WrSdian; thence Worth 89'18'10" vest, 46.07 feet to the True Point Of beginning; Said point being on 8 -*tangent cume concave So~theisterly ad h8Viqg 8 radius Of 310.00 feet, 8 radial Ilne to said point bears North 43'14'53'' West; thence Soutbuesterlp along said Curve through 8 central asgh of 41'33'00" .D 8rC distance of 224.81 feet; thence laving said Curve Worth 89'18'10' Yert 557.72 feet; thence South 61'25'08' Vest 305.23 feet, thence Aorth 10'19'07' West, 374.05 feet; tbence North 79'40'53" East, 272.00 feet; thence Worth 02'01'30' West, 699.16 feet to 8 point on a 000- taogent curve conc~ve Southwesterly and haviug 8 radius of 761.50 feet, a radial 111~ to said point burr North 10'06'51' East, thence Southurtcrly along said cume through a cectrd angle of 03'23'09' 80 8rC dirtrnce of 45.00 feet, thence tangent to raid curoe South 76'30'00' East, 350.95 feet, thence Worth 1.00 foot; theoce South 76'30'00" East, 339.00 feet; thence South 350.00 feet; thence South 06'51'53' East 261.11 feet to the True Point of Eeginnfng. & Excepting therefrcn thrt portion demcrlbtd 8s folloy?: 4 bmneocing at the lorthe8rterly comer of Carlsbad hact Ro. 77-2, Unit No. 2, 8ccording to Ihp thereof I&. 9813 filed In the Office of the County Recorder of raid S8n Diego County, SepteQber 26, 1980; thence North 1'01'10' East, dong the krterly line of said Eosp Eucalyptus Forest Caprpany's Tract LJO. 1, 843.18 feet; thence North 89'11'20' Vest, 46.07 feet to the True Point of Beginning and the beginning of 8 oon-tangent CuTpe, concave Southearterlp 8nd hrvi~g a radius of 310.M) feet; tbeoce Southerly dong .aid curve through 8 ccntrrf 8qle of 41'32'50' an arc distance of 224.79 feet; thence lcaviqg uld curve, brth 89'11'20' Yert, 30.085 feet to the k~innlng of noo-tangent curve, concave Soutbt8sterly and havi~g 8 r8dlus of M0.00 feet; thence krthtrly do- said curve through 8 centrd 8rJgle of 45'35'1s' 8Dd 8rC distance of 270.52 feet; thence leaviqg mid cufve South 6.45'09" East, 36.11 feet to the True Point of Beginning. , 23, 2L, 25. CZRG~ Street arid of EuEa]).ptU6 Street In Bo6~ fucalpptus Forest Coopany's Tract )io. 1, in the City of Carlcbad, County of San Diego, State of Cellfortiie, according to Yap thereof No. 1136, filed In the Office of the Coamtp Recorder of bn Diego County, June 6, 1908 deccribed 8S follovs: Canencing at the EOSt Southvesterly corner of Lot 25 in 6ald tract; thence along the Southwesterly line of bald Lot 25 Korth 23'27'45' Lest, 195.00 feet; thence hortb 6ec30'2o* East, 360.41 fret to the ?rue Point of Beginning; thence h'orth 18'09'57" liest, 40.89 feet to the beglnnlng of a tangent cume concave Eortheasterl~ and having 8 radius Of 1042.00 feet; thence Korthvesrerly along raid curve thru 8 centrd rqgk Of 14'3S'28" an arc distance of 265.33 feet; thence tangent to raid curve North 03'34'35' West 94.02 feet to the beginning of tangent curve concave Southvecterly and having 8 radius of 458000 feet; thence Northwesterly dong raid curve thru 8 central angle of 22'18'38" an arc distance of 178.34 feet; thence tangent to raid curve North 23'53'13' Vest 189.20 feet to the beginning of a tangent curve conc8ve Northeasterly and having a radius of 1042.00 feet; thence Worthwsterly doxg uld curve tbru 8 central .*le of 10'17'57' an arc distance of lS7.30 feet; thence tangent to raid tunre Rorth 15'35'16- West, 108.11 feet to the beginning of a tangent cume concave Southnsterly and hrvlfig a radius of 20.00 feet; thence Eorthuesterly along raid ewe tbru centrd rngfe of 88'16'48' 8n 8rc distance of 30.82 feet to 8 poizit of cusp vltb 8 cufve conc~ve Rorthvesterly and having a rldiuc of 838.50, 8 radial line to raid point of cusp bears South 13'52'01' kst; tbence &rthe8sterly dong the last mentioned curve thru 8 central angle of 01'43'12' an arc distance of 25.17 feet; thence tangent to uid CUWE loorth 74'24'44' East 140.00 feet to the beginning of a tangent tune corxave brthwesterly and having a radlus of 838.50 feet; thence Northeasterly do- raid curve thru a central angle of 13'24't'A" an arc dlrunce of 196.28 feet; thence tangent to raid cufpe brth 61'00'00" East, 171.31 feet to tbt beglnnlqg of 8 ttrrtgtnt curve concave Southeaeterly and having radius of 761.50 feet, thence Easterly along raid curve thm 8 central angle of 39'06'51' 80 8rc distance of S19.83 feet; thence South 00'01'30' East 699.16 feet; thence South 79'40'53' West, 272.00 feet; thence South 10°19'07' East 371.05 feet; thence South 68'30'20' West, 541.94 feet to the True Point of kglnnlng. Excepting thcrefrar an M foot vide rtrfp of land, 42-00 feet each ride of the follovisg described centerfine: Gm8enclng at 8 point on the VeSterly line of dd bt 25 dirtant thereon Rorth 23'27'4s' West, 195.00 feet frtm tbe Soutbnrt comer tbereof; thence leaving ..Id Ucrterl~ line lCorth 68'37'10' East (record lorth 68'30'28' East pcr deed) 402.S2 feet to the True Point of Beginning; thence brtb 18.03'07' West, 38.37 feet to the beglonhg Of 8 Cum€, COnC8VC hettrfy 8d biv$q 8 r8dlus of ~000.00 feet; thence slow said cum through (I central aqle of 14'35'23- an are dirt8nce of 254.64 feet; tbenee tawent to nld cum lorth 3'27'4b' West, 109.90 feet to the begimnlPg of a tangent curve, CODC~~C Uertcr27 and brei- 8 rdiut of 800.00 feet, thence dory: uld curve through 8 central angle of 25'22'3[.'' 8r erc distancc of 35:.3C feet; t).8e:ct tanFer,t to raid cur\'€ ~crtt. c- __ .i' kc::, :(:,:: fct: tT ttr :ti-:.::r4 ti L *--- .c..ccr.: ccrvt CCT.:L-.Z f;c:c::\ .-; CC? ,. 8r.t k.avjnE 6 ra2ius of 6C8C.@:, fctt; tfltr.cc h1Cr.E 6Bid curve througt. a cer,tr&: angle of 13'21'49'' an arc distance of 18t.S9 fret; thence Korth 15'28'25" Yest, 30.W feet more or less to the Southerly right of way line of brron Road. The sfdelfnes of 681d 84 foot wide Street Shall temlnate with 20.00 foot radios returns 8t said Southerly right of way line of Yarron Road. FARCEL 3 Portions of Lots 22, 23, 24, 25 and of EucrlyFtus Street in Hosp Eucalyptus Forest Conpany'r Tract KO- 1, in the City of Cgrlsbad, County of San Dfego, State of California, 8ccordlag to Map thereof Eo. 1136, filed in the Office of the County Recorder of San Diego County, Jme 8, 1908, described as follows: karencing at the most Southverterly comer Of Lot 2s 10 8ald tract; thence along the Southvertcrly line of eaid Lot 25 North 23'27'45" Ye6t 195.00 feet; thence North 68'30'20" East 360.41 feet; thence Lorth 18'09'57" Yest 40.89 feet to the beginnlug of a tangent curve concave Kortbeasterly and having 8 radios of 1WZ.W feet; thence Northverterly along raid curve through a central angle of 01'38'58' an arc distance of 30.00 feet to the True Point of Beginning; thence continuing along mid curve through a central angle of 12'56'24' an arc distance of 235.33 feet; thence tangent to raid curve Rorth 03'34'35' West 94.02 feet to tbe bcginnie of a tangent cume concave Soutbuestcrlp and having 8 radius of 458.00 feet; thence brthuesterlp .lox said carve through a central angle of 22'18'38" an arc distance of 178.34 feet; thence t8ngent to raid curve Rorth 25'53'13' Yect 189.20 feet to the beginniqg of 8 tangent curve concave brtheasterly and bviog 8 r8dIuS of 1w2.00 feet; thence lortberterlp dong mid curve througb a ccntrd arqgle of 10°17@57' 8n arc dlrtrnce of 187.30 feet; thence tangent to raid cuiw North 15'35'16- Yest 108.41 feet to the beginning of a tangent curve eonc@-ie Southnrterly ad bviq 8 radius of 20.00 feet; thence Nortbuesterly dong raid cume through 8 central angle of 88"16'18' BR are distance of 30.82 feet to a point of reverse cunw concave liortherly and having a radius of 838.50 feet; thence Ytrterly dong uld reverse curve through 8 central .ogle of 32'08'52' 80 arc dlct8occ of 470.47 feet; thence South 07'36'20' West 213.72 feet; tbence South 66'59'00" Erst 268.29 feet; thence South 25'53'13' kst 590.00 feet; thence Soutb 66'45'50' kst 330.26 feet to the Tme Point of Beginning. ExceFting therefra 80 81 foot wfde strip of land, 42-00 feet each ride of the follovlng described centerline: aeneing 8t 8 plot on the UesteYly line of 88Sd Lot 25 dirtant thereon Rorth 23.27'45" &st, 195.00 feet frm the Soutbuest corner tbereof; thence leaving raid Uesterly line brth 68'37'10" East (fccord lorth 68'30'28' East pr ad) 402.52 feet to tbe True hfnt of Beginning; thence lortb 18°03'07' Uest, 38.57 feet to the kgidng of tangent tunre, toneme Zarterly and bring I rdiuc of 1000.00 feet; thence do- wid cnme through a central angle of 14'35'23' an arc distance of 254.64 feet; thence tangent to .aid curve Rorth 3'27'44' West, 109.90 feet to the beginning of a taqent curve, CO~C~VC Westerly ad hroiqg a rsCjus of ECIC8.60 feet, thence along said curve throuft a central angle of d: &.'j{ E: E:; c:f:~:;f cf 3Jb.31 fcc:; tbcrct t~rit:.: tc rzjC cur\<. t::rtt 2Er5C'iL' );est, 1Ot.14 f~rt tG the btgir,rbing of a t8nger.t curve conca\c Easter]) and havlng a radiu6 of 800.00 feet; thence along raid curve through central angle of 13'2l1L9'' an arc distance of 186.59 feet; thence Sorth 15'28'25" liest, 30.00 feet =re or less to the Southerly right of way line of krron Road. me ride~loeo of sald 84 foot vide street rhall tcminate vlth 20.00 foot radius returns at sald Southerly right of wsy line of hrron Road. c - 'I. jaf taf The land referred to herein 1s sltuzted in the State cf California, County of San Diego, and Is described a6 follovs: PARCEL 1: Those portions of Lots 19, 20, 21, and 33 and of Eucalyptus Street jn ROSP EuCIILYPl'VS FOREST COX?A!!Y'S TRACT KO. 1, lo the City of Carlsbad, County of Sari Dfego, State of California, according to Pap thereof So. 1136, filed in the Office of the County Recorder of San Diego County June 8, 1908, described 88 follovs: Comencing at the Southeaat corner of raid Lot 20; thence along the easterly fine thereof, Horth 06'58'00' Last 278.00 feet to the TRUE POINT OF BEGINNING; thence South 70'28'24' Ucrt 505.81 feet; thence North 89'29'00' Uert 213.74 feet to 8 point on 0 norrtangent 462.52 foot radiur curve concave Rorthvcsterly, radial line of which bear8 Sauth 49'22'30' u8t to 88id point; thence lorthcarterly along the 8rc of 88ld cume through 8 centtal angle of 05'24w55', 8 dlrtance of 43.72 feet; tbence taugent to 88ld came, Bortb 35'12'35' 449.4b feet to the beginning of 8 t8~gent 490.00 foot r8dlu8 cumt concave Southeasterly; thence Hortbc8sterly along the 8rc of raid cume, through a central angle of 37'47'39', 8 dl8t8nCt Of 323.22 feet; thence tangeat to raid cumc Rorth 73'00'14' trrt 111.94 feet to the beginning of 8 tangent 20.00 foot radiur curve concave Southwesterly; thence kOterly 8nd Southeasterly along the 8rc of raid curve, through 8 central 8nglt Of 86'40'30', 8 di8tancc of 30.26 feet to the beginnlag of 8 rcver8e 842e00 foot radiur curve concave Bortherrterly; thence Southeartcr1y along the 8rC Of raid cumc, through a central angle of 2i'4SW00', 8 dIrt8nCe of 363.72 tzet; tbcnce South 44'SS144' Ucrt 161.SO feet to 8 point vhlch bearr Rorth 70'281.24' htt froa the TRDE POINT OP BECXRZTING; tbcnce South 70.28'24' Ucrt 69.19 feet to the 'IBUE POIm OF BtCfRNIRG PARcn 2: Thore portion8 of Lotr 19 8od 20 la EOSP IUCALTPTUS ?OREST COMPARP'S TRACT 80. 1, in the Cltj of Clrlrhd, hmtf of %a biego, State of Clllfornia, 8ccording to 1I.p thertof Bo. 1136, filed In the Office of tbc Cormty Recorder of San Diego bunty, June 8, 1901, dcrcrlkd 88 follow: bE/izr.!zg at tt,~ fct.:brzs: ccrr.er C! SE:C Lct 2C; tk,e-:e slorg the S3ctt..r:lv line of said Lots 20 and 19, h'orth 89'29'00' Vest 761.61 feet to a point on 8 no-tangent 462.52 foot radius curve concave Northwesterly, I radial line of which bears South 29'16'10' East tO said point; thence Northeasterly along the arc of raid cume through a central angle of 20'06'20' a dlrtance of 162.30 feet; thence South 89'29'00' trrt 213.74 feet; thence Rorth 70'28'21' art 505.81 feet to an intersection vith the Easterly line of raid Lot 20; thence along raid Easterly line, South 06'58'00' West 278.00 feet to the Point of Beginning. PARCEL 3: Thorc portion8 of Lots 19, 20, 21, and 33 of Eucalyptus Street in ROSp EUCALYPTUS POREST COHPANY'S TRACT NO. 1, in the City of Carlrbad, County of Dlcgo, State of Callforola, accordlq to hp tbereof 610. 1136 filed in the Office of the County Recorder of hn Diego County June 8, 1988, dcrcribed a8 f ollovr: Commencing at the Southeart corner of raid Lot 20; thence along the Ear&erly line thereof; North 06*58'00' trt 278.00 feet to the TRUE POUT OP BECINNI~?G; thence South 70'28'24' Vert 505.81 feet; theace 89b29t00' Vert 213.74 feet to 8 point on 8 ooptaageat 462.52 foot radlor cume concave Ilortbverterly, a radial line of vhich bear8 South 49.22'30' krt to 8ald point; thence Rorthearterly .long the arc of said cume, through a centrd angle 05*24'SSo, a dlrtroce of 43.72 feet; thence tangent to raid come, lorth 3S012'35' h8t 449.44 feet to the beginning of tarrgent 490.00 foot radiur cume concave h~thearterly; thence Rorthcarterly the arc of raid curve, through 8 central angle of 37'47'39' 8 dlrtance of 323.22 feet; thence taqent to raid curve, &rth 73'00'11' mot 111.94 feet to tbe beginnlog of 8 t8ngent 20.06 foot radiur curve coauve Southverterly; thence trterly rad Southeartetly 81org the arc of said curve, tbrough central angle of 86b40'30' 8 dlrtance Of 30.26 feet to tbe kglPning of a revetre 842.08 foot rrdiur Cume cor!C.ve Nrthearterly; thence SoUtbea8terly along the 8rc of raid curve tbrough central 8qlc of 21*45'00', A dirtance of 363.72 feet; thence South 44°55'11' Uert 161.50 feet to a point which bearr North 70°28'24' trt fta the TRUE l0IRT 01 BLGIRNIRC; thence South 70.28'24' Vert 69.19 feet to the ZPDE ?Om OF BEGINNIIPC. EXCLPTIIOC TEEBEFRW tbore portloar lylng Southverterly of tbe Southwesterly line of 88id tuulyptur Street. a AGREEMENT FOR SETTLEMENT OF DISPUTES AND MUTUAL RELEASES , AGREEMENT FOR SETTLEMENT OF DISPUTES AND MUTUAL RELEASES THIS AGREEMENT is made and entered into this __. day of May, 1987, by and between Grove Apartments Investment Co. ("Grove"), H.F.H., Ltd. ("H.F.H."), Harry J. L. Frank, Jr. ("Frank"), the Bernard Citron Trust ("Citron Trust") , Fred A. Bartman, Jr. ("Bartman"), the Marital Trust under the Will of William S. Bartman ("Marital Trust"), the Residuary Trust Under the Will of William S. Bartman ("Residuary Trust") (all of the foregoing hereinafter sometimes referred to collectively as the "Grove Parties") , Odmafk Development Company ( "Odmark") , and the City of Carlsbad ("Carlsbad"). I FACTUAL RECITALS 1.0 This Agreement is entered into with reference to the following facts: 1.1 Grove is and/or previously was the record owner of a portion of certain real property located in the County of San Diego (the "Grove Parcel"). The legal description of the Grove Parcel is attached hereto as Exhibit ''1'', and incorporated herein by this reference. 1.2 For purposes of development, the Grove Parcel was divided into sub-parcels A, B, C, D, and E, all as reflected on the Master Plan of Development, approved by Carlsbad on or about March 3, 1970. 1.3 Grove Sub-parcels B and C have already been developed. Sub-parcels D and E have the following acreage, which Grove previously intended to develop with residential units as follows: D 16.085 acres 130 units E 27.675 acres 240 units 1.4 The partners of Grove and HFH, Ltd. are the record owners of certain real property located in the County of San Diego ("Parcel "F"). The legal description of Parcel F is attached hereto as Exhibit "2" , and incorporated herein by this reference. 1.5 Parcel F consists of approximately 8.92 acres. 1.6 On or about October 9, 1964, a Grant of Easement of Right-of-way from Rildan, Inc., a predecessor-in-interest to plaintiff Grove Apartments Investment Co. ("Grove") to the City of Carlsbad ("Carlsbad") and the Vista Sanitation District ("VSD"), as tenants in common ("Rildan Easement"), -2- . dated July 23, 1964, was recorded in the office of the County Recorder, County of San Diego, in Book 1964 at Page 184917. 1.7 On or about October 9, 1964, a Grant of Easement of Right-of-way from Fawco, a partnership, Bernard Citron ("Citron"), and Harry J. L. Frank, Jr. ("Frank"), all predecessors-in-interest to plaintiff Grove, to Carlsbad and VSD, as tenants in common ("Fawco Easement"), dated July 23, 1964, was recorded in the Office of the County Recorder, County of San Diego, in Book 1964 at Page 184918. 1.8 On April 6,, 1977, the City Council of Carlsbad adopted Ordinance No. 7047 and Ordinance No. 7048, which Ordinances were superseded by Ordinance No. 9518 creating Chapter 21.49 of the Carlsbad Municipal Code and Ordinance No. 8073 creating Chapter 18.05 of the CMC, and which imposed a moratorium on the issuance of building permits in Carlsbad and a moratorium on the acceptance of applications for and granting of discretionary approvals for development projects in Carlsbad. 1.9 On or about September 12, 1977, Grove Apartments Investment Co. ("Grove") , a partnership, as successor in interest to Rildan Inc., Fawco, Citron, and Frank, filed an action in the Superior Court entitled "Grove Apartments Investment Co., a partnership, v. City of Carlsbad, a -3- Municipal Corporation, Vista Sanitation District, a Public Corporation," being Civil Action No. N 9052 in the Superior Court for the County of San Diego, North County Branch (hereinafter "Action No. N 9052 'I ) , seeking, among other things, a judicial determination of its rights and obliga- tions under the Rildan and Fawco Easements and under Ordinance Nos. 7047 and 7048, as amended and supplemented. 1.10 On or about July 31, 1978, pursuant to leave granted by the Court therefor, Carlsbad filed a cross-complaint for declaratory relief adding HFH, Ltd. ("HFH") and Kamar Construction Company ("Kamar") as parties to this action. 1.11 The trial in the matter commenced in October 1978 and continued thereafter, except where recessed, until November 20, 1978 when all sides rested, with the presenta- tion of numerous oral testimony and the introduction of voluminous exhibits by all parties. 1.12 On November 21, 1978, the Court, after hearing argument, issued certain tentative rulings, and ordered further briefing in said action. 1.13 Subsequent to November 21, 1978, the parties and others, after numerous meetings and other negotiations, entered into an Agreement for Settlement of Lawsuit and -4- Mutual Releases (hereinafter the "Grove Settlement Agreement"), resolving, among other things, all the issues in the action. 1.14 Pursuant to said Grove Settlement Agreement the parties stipulated to entry of a Judgment Pursuant to Stipulation (hereinafter the "Grove Judgment"), which thereafter was duly entered herein,.and which provides for certain development rights with regard to the property which is the subject matter thereof. 1.15 The Grove Judgment provides, among other things, that the rights provided therein shall terminate after the 10th anniversary of events more specifically referred to therein, such that it could be contended that said rights would cease sometime in late 1989. 1.16 Subsequent to the entry of the Grove Judgment, certain of the real property which is the subject matter of the Grove Judgment was developed. 1.17 In order to develop and/or cause the development of certain remaining portions of the real property which is the subject matter of the Grove Judgment, Grove entered into an agreement with Odmark Development Company ("Odmark"), which, as from time to time amended (the "Odmark Agreement"), provided for the sale to Odmark of Parcels D and E of the -5- property, Parcel E being comprised of sub-parcels E and E Prime. All of Odmark's right, title, and interest in, to and under the Grove Odmark Agreement are hereinafter referred to as the "Odmark Rights." 1.18 Pursuant to the Odmark Agreement, Odmark prepared certain designs and plans for a project involving the construction upon Parcel E of 216 condominium units (the "proposed condominium project") , thus involving a project density of 10.8 dwelling units ("dust') per acre, excluding designated open space and 40% slopes. 1.19 Prior to January 22, 1986, Odmark submitted to the Planning Department of the City of Carlsbad an Environmental/ Initial Study including numerous reports and supplemental reports evaluating potential environmental impacts of and corresponding mitigation measures for the proposed condominium project. 1.20 The Planning Director of the City of Carlsbad, after determining that the proposed condominium project would not cause any significant impacts because potential impacts had been mitigated, issued a Mitigated Negative Declaration, dated January 26, 1986, which, on February 5, 1986, was recommended for approval by the Planning Commission of the City of Carlsbad. -6- * 1.21 Odmark applied to the Planning Commission of the City of Carlsbad for approval of a two-lot tentative map and 216/unit condominium permit with regard to the project. 1.22 By Planning Commission Resolution No. 2538, the Planning Commission of the City of Carlsbad recommended approval of a two-lot tentative map.and 216-unit condominium permit for the project. 1.23 On March 18, 1986, the City Council of the City of Carlsbad held a public hearing to consider the request by Odmark to approve the tentative map and condominium unit permit, and further to consider approving the Mitigated Negative Declaration issued by the Planning Director and recommended for approval by the Planning Commission. 1.24 A number of members of the public appeared at said hearing to challenge the project, to advocate the acquisition by the City of Parcels D, E, and F (or portions thereof) for recreational purposes, and/or to question the conclusions of the Planning Director and Planning Commission leading to the issuance of the Mitigated Negative Declaration. 1.25 By Resolution No. 8468, the City Council of the City of Carlsbad disapproved the Mitigated Negative Declaration, -7- and directed the preparation of an Environmental Impact Report for said project. 1.26 In connection with said action, the City Council voted to cause a review of both the General Plan and Hosp Grove Master Plan, and to consider the possibility of acquiring some or all of Parcels D, E and F. . 1.27 Subsequent to the foregoing, Grove and Odmark placed the City on notice of their position that the fore- going actions of the City Council in disapproving the Mitigated Negative Declaration, requiring that an Environ- mental Impact Report to be prepared concerning said project, causing the Hosp Grove Master Plan and General Plan to be reviewed were unlawful and in violation of their rights, including their rights to development under the Judgment entered in this action. 1.28 Subsequent to the actions of the City Council described hereinabove, members of the public continued to express a desire to attempt to acquire Parcels D, E and F, or some portion thereof, for park and/or recreational purposes, and Grove and Odmark continued to assert their rights to develop said parcels. -8- L 1.29 Commencing April, 1986, representatives of the City of Carlsbad, Grove, and Odmark met and otherwise communicated on numerous occasions in order to resolve the disputes which existed between them arising out of the foregoing. 1.30 On or about July, 1986, Grove, H.F.H., the Vista Sanitation District, Kamar Construction Company, and the City of Carlsbad entered into a Stipulation for Entry of Revised Judgment in Civil Action No. N 9052, pursuant to which a Revised Judgment Pursuant to Stipulation (the "Revised Grove Judgment") has been duly entered therein; 1.31 As of July 10, 1986, Grove, H.F.H., various of the principals of each, and City entered into an Agreement for Purchase and Sale of Real Property, pursuant to which, on November 4, 1986 a ballot measure was submitted to the voters of the City regarding, among other things, the acquisition of the Property by the City. Such ballot measure received slightly less than 2/3 affirmative vote and was not approved. 1.32 Thereafter the City determined to acquire the Property in lieu of condemnation of the Property, and to purchase and have assigned to it the Odmark Rights, provided it obtained the requisite vote of the registered voters within the City authorizing or approving such acquisition. -9- J 1.33 The City caused a ballot measure ("Acquisition Ballot Measure") to be submitted to the voters of the City at a special election held on March 3, 1987, which Acquisition Ballot Measure was approved, and which authorized the City to acquire the Property and the Odmark rights for cash. 1.34 Odmark and certain of the Grove Parties have filed an action in the San Diego Superior Court, Development Company, et al. v. City of Carlsbad, et al.. which is Civil Action No. N 36215 in said Court (hereinafter Civil Action No. N 36215). entitled Odmark 1.35 As of May , 1987, Grove, H.F.H., various of the - principals of each, Odmark and City entered into an Amended and Restated Agreement for Purchase and Sale of Real Property (the "Restated Agreement" ) . 1.36 It is now the desire and intentif3n of the Grove Parties and Odmark, on the one part, and the City of Carlsbad, on the other part, to compromise and resolve all of the disagreements and disputes which exist or may exist between them arising out of the foregoing, above, and also to resolve certain other matters. Pursuant to and in accordance with this desire, and in consideration of the promises and releases contained herein, the parties agree as follows: - 10- I1 DISMISSAL OF LITIGATION AND RELEASES 2.0 Odmark and those of the Grove Parties who are plaintiffs therein hereby agree to file a Request for Dismissal with Prejudice of Civil Action No. N 36215, each party to bear its own costs. 2.1 Except as expressly provided in paragraph 2.6 below, the Grove Parties and Odmark, and each of them, do hereby release and absolutely discharge the City of Carlsbad of and from any and all claims, demands, damages, debts, liabilities , accounts , reckonings, obligations , costs , expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsuspected, which the Grove Parties and/or Odmark now have, own, or hold or at ar,y time heretofore ever had, owned or held against the City of Carlsbad based upon or arising out of any matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof in connection with their ownership of and/or rights and/or attempts to develop Parcels D, E, and F (all of which are hereinafter referred to as and included within the "Released Matters"). -11- L 2.2 Except as expressly provided in paragraph 2.6 below, City of Carlsbad does hereby release and absolutely discharge the Grove Parties and Odmark, and each of them, of and from any and all claims, demands, damages, debts, lia- bilities, accounts, reckonings, obligations, costs, expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsuspected, which the City of Carlsbad now has, owns, or holds or at any time heretofore ever had, owned or held against the Grove Parties or Odmark based upon or arising out of any matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof in connection with their ownership of and/or rights and/or attempts to develop Parcels D, E, and F (all of which are hereinafter referred to as and included within the "Released Matters" ) . 2.3 Except as expressly provided in paragraph 2.6 below, the Grove Parties do hereby release and absolutely discharge Odmark of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obliga- tions, costs, expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsuspected, which the Grove Parties now have, own, or hold or at any time heretofore ever had, owned or held against Odmark based upon or arising out of any -12- matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof (all of which are hereinafter referred to as and included within the "Released Matters"). 2.4 Except as expressly provided in paragraph 2.6D below, Odmark does hereby release and absolutely discharge the Grove Parties of and from any and all claims, demands, damages , debts, li abi 1 i ties , accounts , reckonings , ob1 iga- tions, costs, expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsuspected, which Odmark now has, owns, or holds or at any time heretofore ever had, owned or held against the Grove Parties based upon or arising out of any matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof (all of which are hereinafter referr2d to as and included within the "Released Matters"). 2.5 Without in any way limiting the foregoing, and except as expressly provided in paragraph 2.6D below, the City of Carlsbad hereby releases, discharges and indemnifies, and agrees to hold harmless (a) the Grove Parties from each ana all of the obligations of the Grove Parties under the agree- ments identified on Exhibit 3 hereto as such agreements apply to the Property, (b) the parties to that certain Agreement -13- . regarding payment of a Pu ic Faci ities Fee, Late( July 12, 1985 and recorded August 26, 1985 under File Number 85-308357 and 85-308358, from each and all of the obligations there- under, and (c) the Grove Parties and Odmark from any and all claims, losses, or demands of any kind whatsoever arising out of or connected with the condition of the Property previously or hereafter existing, and/or the unsuitability of the Property for any use, except any claims, losses, or damages arising from any negligent acts by the Grove Parties or Odmark in connection with the Property. 2.6 The releases contained in this Agreement, and the descriptions of the Released Matters, do not cover and should not be deemed to purport to cover: A. Any of the rights, duties or obligations of any person not a party hereto under the Revised Gro7.e Judgment; or B. Any of the rights, duties, or obligations of any person or party (including any party hereto) under the Revised Grove Judgment or otherwise concerning the real property referred to in the Revised Grove Judgment as the "May Stores Non-Coastal Zone Commercial Parcel" and/or the "May Stores Coastal Zone Commercial Parcel"; or -14- C. Any of the rights of any person or party (including any party hereto) under the Revised Grove Judgment concerning sewer capacity (including the right to receive, assign, and/or to transfer the same, and the obligations, if any, to pay for the same), insofar as such rights may be necessary fully to provide sewer service to the real property referred to in the Revised Grove Judgment as the "May Stores Non-Coastal Zone Commercial Parcel" and/or the "May Stores Coastal Zone Commercial Parcels" (which the parties presently believe will involve between and - E.D.U's); or D. Any of the rights, duties, or obligations of the parties referred to in, arising under, or created by the Restated Agreement which by the terms thereof survive the Property Close of Escrow. 2.7 It is the intention of the parties in executing this Agreement, that this Agreement shall be effective as a full and final accord and satisfaction and general mutual release of and from all Released Matters, except only as otherwise expressly provided in this Agreement. of this intention, each of the parties acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California, which provides as follows: In furtherance -15- "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settle- ment with the debtor." Each of the parties waives and relinquishes any right or benefit which it has or may have under Section 1542 of the Civil Code of the State of California or any similar pro- vision of the statutory or non-statutory law of any other jurisdiction to the full extent that it may lawfully waive all such rights and benefits pertaining to the subject matter of this Agreement. In connection with such waiver and relinquishment, each of the parties acknowledges that it is aware that it or its attorneys may hereafter discover claims or facts in addition to or different from those which it now knows or believes to exist with respect to the subject matter of this Agreement or the other parties hereto, its intention hereby fully, finally, and forever to settle and release all of the Released Matters, known and unknown, but that it is suspected or unsuspected, which now exist, may exist, or heretofore have existed, between them. 2.8 The parties hereto each warrant and represent to the other that it is the sole and lawful owner of all right, -16- . title and interest in and to all of the respective Released Matters and that it has not heretofore, voluntarily, by operation of law or otherwise, assigned or transferred or purported to assign and transfer to any person whomsoever any Released Matter or any part or portion thereof, or any claim, demand or right against the other. Each of the parties shall indemnify and hold harmless the other from and against any claim, demand, damage, debt, liability, act, reckoning, obligation, cost, expense, lien, action, or cause of action (including payment of attorneys' fees and costs actually incurred whether or not litigation be commenced) based on or in connection with or arising out of any such assignment or transfer or purported or claimed assignment or transfer. 111. BENEFICIARIES 3.0 This Agreement is not for the benefit of any person who is not a party signatory hereto or specifically named a beneficiary in this paragraph. The provisions of this Agreement and the releases contained herein shall extend to and inure to the benefit of, and be binding upon, in addition to the parties hereto, just as if they had executed this Agreement: the respective legal predecessors, successors and assigns of the parties; each and every entity which now is or ever was a parent or subsidiary of Odmark; the respective -17- c 4 past and present officers, shareholders, officials, directors, partners, employees, trustees, beneficiaries, and attorneys of the parties and/or of each such parent or subsidiary entity, and their respective legal successors and assigns; and each of the foregoing. IV. GENERAL 4.1 This Agreement and the releases contained herein affect the settlement of claims which are denied and disputes which are contested, and nothing contained herein shall be construed as an admission by any party hereto of any liability of any kind to any other party. Each party expressly denies that it is in any way liable or indebted to any other party. 4.2 This Agreement, the Restated Agreement, and the Revised Judgment constitute and contain the entire agreement and understanding concerning the subject matter between the parties, set forth all promises and inducements made by any party to any other party with respect to any of the subject matter, and supersede and replace all prior negotiations, proposed agreements or agreements, written or oral. Each of the parties acknowledges to each of the other parties that no other party nor any agent or attorney of any other party has -18- made an] promise, representation or express or implied, written or oral, rarranty whatsoever, not contained herein concerning the subject matter hereof to induce it to execute this Agreement, and each of the parties acknowledges that it has not executed this Agreement in reliance on any promise, representation or warranty not contained herein. 4.3 Each party acknowledges to each of the other parties that it has been represented by independent legal counsel of his own choice throughout all of the negotiations which preceded the execution of this Agreement and that it has executed this Agreement with the consent and on the advice of such independent legal counsel. Each party further acknowledges that it and its counsel have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of this instrument prior to the execution herecf and the delivery and acceptance of the consideration specified herein. 4.4 This Agreement and any other documents referred to herein shall in all respects be interpreted, enforced and governed by and under the laws of the State of California applicable to instruments, persons and transactions which have legal contracts and relationships solely within the State of California. Counsel for all parties have read and -19- approved the language of this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the parties. 4.5 As used in this Agreement, "persons" includes natural persons, corporations, partnerships, joint ventures and any other entity. 4.6 Whenever in this Agreement the context so requires, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular to refer to and include the plural. 4.7 This Agreement may be executed in counterparts and shall become effective when all parties have executed and acknowledged at least one counterpart and counterparts executed and acknowledged by all parties have been delivered to counsel for the parties. 4.8 The titles of the various articles of this Agreement are used for convenience of reference only and are not intended to and shall not in any way enlarge or diminish the rights or obligations of the parties or affect the meaning or construction of this document. -20- ' IN WITNESS hands and seals WHEREOF, the parties hereto have set their as of the day and year first written above. GROVE APARTMENTS INVESTMENT CO. a partnership Its: H.F.H., LTD. By : Its: HARRY J. L. FRANK, JR. BERNARD CITRON TRUST By : Its: FRED A. BARTMAN, JR. MARITAL TRUST UNDER THE WILL OF WILLIAM S. BARTMAN By : Its: -21- APPROVED AS TO FORM SIDLEY & AUSTIN AND RESIDUAR ST JNDER THE WILLIAM S. BARTMAN JILL OF By : Its: ODMARK DEVELOPMENT CO. a corporation By : Its: THE CITY OF CARLSBAD By : Its: CONTENT : Howard J. Rubiiiroit Attorneys for Grove Apartments Investment Co.; H.F.H., Ltd.; Harry J. L. Frank, Jr.; Bernard Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the Will of William S. Bartman, Residuary Trust under the Will of William S. Bartman Vincent Biondo, Jr. City Attorney, City of Carlsbad -22- 1 PETERSON, THELAN & PRICE By : John Thelan, Esq. Attorneys for Odmark Development Co. HJR187A -23- ASSIGEMENT OF ODMARK RIGHTS PEW. I TTED EXCEPT 1 ONS (a) that certain Preliminary Title Report issued by First American Title Insurance Company, dated as of June 12, 1986 (Order No. 900394-2); and, Exceptions numbered 1 through 11 and 15 as disclcsed in (b) Exceptions numbered 1 through 9 as disclosed in that certain Preliminary Title Report issued by First American Title Insurance Company, dated as of June 12, 1986 (Order NO. 925612-1) . I 1. A Contract for the Creation of a Lien for Payment for Public Improvements, dated January 27, 2981, executed by the City of Carlsbad and Grove Apartments Investment Company, recorded January 30, 1981 as File No. 81-030961 of Official Records. 2. A Contract for the Creation of a Lien for Payment for Public Improvements, dated January 27, 1981, executed by the city of Carlsbad and Grove Apartments Investment Co., recorded February 10, 1981 as File No. 81-041815 of Official .Records. 3. A Contract for the Creation of a Lien for Payment for Public Improvements, dated January 278 1981, executed by the City of Carlsbac2 and Grove Apartments Investment Co., recorded February 17, 1981 as File no. 81-048012 of Official Records. I I An Agreement regarding proposed roadways, dated October 26, 1977, upon the tenns, covenants and conditions contained therein. EXECUTED BY AED BEWEEN: GROVE APARTHENTS IhlZSThEGT CO. and KAUAR COKSTRUCTIOX CO. RECORDED: Xarch 20, 1978 as File KO. 78-108597 of Official Records. Modification of the 1977 Agreement between a5jacent'land owners, dated October 26, 1977, executed upcr. the terns, covenants and conditions contained therein, recorded October 16, 1978 as file No. 78-4405.17 of Official Records. A Second Kodification to 1977 Agreement between adjacent land owners, Sated November 3, 1982, executed upon the terms, covenants and conditions contained therein, recorded November 24, 1982 as File No. 82-363510 of Official Records. . VESTING b.?.B, L'fD.8 a limited partoerrhip, am to a8 uodivlded oae-third (1/3) ioterert; CtCfLE CITRON BARR(Aw, 80 hurtee of the trurt ertrblirhed under tbe Will of )Luu1D CITRON, deCerWd, 8) to 8n undivided one-oixth (1/4) fatarart; BAltRY 3. L. ?RANK, JR., a urried 8ao 80 hir role 8nd meparrte property, 80 to 4n divided one-rixtb (1/6) foterert; ?RED A. URW, JB., 8 urried uo 4r him #oh abd mparrta property, 81 to 4n undivided oacrixth (1/6) faterert; ?RED A. 80 trurteer under the llrritrl hurt ertrblirhed under the Ylll of UILLIAX S. UlRIAR, deceared, a# to an undivided ooe-twlftb (l/l2) interert; ?RED A. a0 Tmrteer under tbe Remidual Trust ertrblirhed under the Vi11 of UIUIAX S. UW, deceared, a0 to 88 ondirlded ooctnlfth (I/l2) lintarert WW, JR., HOW B. BARR(AI0, mOluS ?RED MRRUR and UILLUn S. MRTHAJt, JR., WT!UJU, JR,, AO1)IA Ba MRT)(AR, TEOW ?RED BARTHAN rnd UILLIU S* BAItM, JR., A COLLINS RELEASE AGREEMENT FOR SETTLEMENT OF DISPUTES AND MUTUAL RELEASES THIS AGREEMENT is made and entered into this ___ day of May, 1987, by and between Grove Apartments Investment Co. ("Grove"), H.F.H., Ltd. ("H.F.H."), Harry J. L. Frank, Jr. ("Frank") I the Bernard Citron Trust ("Citron Trust") , Fred A. Bartman, Jr. ("Bartman"), the Marital Trust under the Will of William S. Bartman ("Marital Trust") , the Residuary Trust Under the Will of William S. Bartman ("Residuary Trust") (all of the foregoing hereinafter sometimes referred to collectively as the "Grove Parties"), Collins Development Corporation ("Collins") and the City of Carlsbad ("Carlsbad") . I FACTUAL RECITALS 1.0 This Agreement is entered into with reference to the following facts: 1.1 Grove is and/or previously was the record owner of a portion of certain real property located in the County of San Diego (the "Grove Parcel"). 1.2 For purposes of development, the Grove Parcel was divided into sub-parcels A, B, C, D, and E, all as reflected on the Master Plan of Development, approved by Carlsbad on or about March 3, 1970. 1.3 Grove Sub-parcels B and C have already been deve- loped. Sub-parcels D and E have the following acreage, which Grove previously intended to develop with residential units as follows: 16.085 acres 27.675 acres D E 130 units 240 units 1.4 The partners of Grove and HFH, Ltd. are the record owners of certain real property located in the County of San Diego ( "Parcel F" ) . 1.5 In order to develop and/or cause the development of Parcels D, E, and F, Grove entered into an agreement with Odmark Development Company ("Odmark"), which, as from time to time amended (the "Odmark Agreement"), provided for the sale to Odmark of Parcels D and E, Parcel E being comprised of sub-parcels E and E Prime. All of Odmark's right, title, and interest in, to and under the Odmark Agreement are hereinafter referred to as the "Odmark Rights." -2- 1.6 Odmark has assigned certain of the Odmark Rights to Collins, and Collins has or claims to have certain rights and claims against the Grove Parties and Carlsbad in connection with the Property, the Odmark Agreement, and/or the Odmark Rights, all of which rights or claims are herein- after referred to as the "Collins Rights". 1.7 As of July 10, 1986, Grove, H.F.H., various of the principals of each, and City entered into an Agreement for Purchase and Sale of Real Property, pursuant to which, on November 4, 1986 a ballot measure was submitted to the voters of Carlsbad regarding, among other things, the acquisition of the Property by the City. Such ballot measure received slightly less than the 2/3 affirmative vote required and was not approved. 1.8 Thereafter Carlsbad determined to acquire the Property in lieu and/or under threat of condemnation, and to purchase and have assigned to it the Odmark Rights (including the Collins rights), provided it obtained the requisite vote of the registered voters within Carlsbad authorizing or approving such acquisition. 1.9 Carlsbad caused a ballot measure ("Acquisition Ballot Measure") to be submitted to the voters of the City at a special election held on March 3, 1987, which Acquisition -3- 4 r Ballot Measure was approved, and which authorized Carlsbad to acquire the Property and the Odmark Rights for cash. 1.10 Odmark, Collins and certain of the Grove Parties have filed an action in the San Diego Superior Court, entitled Odmark Development Company, et al. v. City of Carlsbad, et al. which is Civil Action No. N 36215 in said Court (herein- after Civil Action No. 36215). 1.11 As of May , 1987, Grove, H.F.H., various of the - principals of each, Odmark, and Carlsbad entered into an Amended and Restated Agreement for Purchase and Sale of Real Property (the "Restated' Agreement"). P 1.12 It is now the desire and intention of the Grove Parties, Collins, and Carlsbad to compromise and resolve all of the disagreements and disputes which exist or may exist between them arising out of the foregoing, including those which caused the filing of Civil Action No. N 36215, and also to resolve certain other matters. Pursuant to and in accordance with this desire, and in consideration of the promises and releases contained herein, the parties agree as follows: -4- * I I1 DISMISSAL OF LITIGATION AND RELEASES 2.0 Collins and those of the Grove Parties who are plaintiffs therein hereby agree to file a Request for Dismissal with Prejudice of Civil Action No. N 36215, each party to bear its own costs. 2.1 Collins does hereby release and absolutely discharge the Carlsbad and the Grove Parties, and each and all of them, of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs, expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsuspected, which Collins now has, owns, or holds or at any time heretofore ever had, owned or held against Carlsbad and/or the Grove Parties based upon or arising out of any matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof in connection with their ownership of and/or rights and/or attempts to develop Parcels D, E, and F including, but not limited to, the Odmark Rights and the Collins Rights (all of which are hereinafter referred to as and included within the "Released Matters"). -5- 2.2 Carlsbad and the Grove Parties, and each and all of them, do hereby release and absolutely discharge Collins of and from any and all claims, demands, damages, debts, liabi- lities, accounts, reckonings, obligations, costs, expenses, liens, actions and causes of action of every kind and nature whatever, whether now known or unknown, suspected or unsus- pected, which the Carlsbad and/or the Grove Parties now have, own, or hold, or at any time heretofore ever had, owned or held against Collins based upon or arising out of any matter, cause, fact, thing, act or omission whatever occurring or existing at any time to and including the date hereof in connection with the ownership of and/or rights and/or attempts to develop Parcels D, E, and F, including, but not limited to, the Odmark Rights and the Collins Rights (all of which are hereinafter referred to as and included within the "Released Matters"). 2.4 It is the intention of the parties in executing this Agreement, that this Agreement shall be effective as a full and final accord and satisfaction and general mutual release of and from all Released Matters, except only as otherwise expressly provided in this Agreement. In further- ance of this intention, each of the parties acknowledges that it is familiar with Section 1542 of the Civil Code of the State of California, which provides as follows: -6- "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.". Each of the parties waives and relinquishes any right or benefit which it has or may have under Section 1542 of the Civil Code of the State of California or any similar provi- sion of the statutory or non-statutory law of any other jurisdiction to the full extent that it may lawfully waive all such rights and benefits pertaining to the subject matter of this Agreement. In connection with such waiver and relinquishment, each of the parties acknowledges that it is aware that it or its attorneys may hereafter discover claims or facts in addition to or different from those which it now knows or believes to exist with respect to the subject matter of this Agreement or the other parties hereto, but that it is its intention hereby fully, finally, and forever to settle and release all of the Released Matters, known and unknown, suspected or unsuspected, which now exist, may exist, or heretofore have existed, between them. 2.5 The parties hereto each warrant and represent to the other that it is the sole and lawful owner of all right, title and interest in and to all of the respective Released -7- I Matters and that it has not heretofore, voluntarily, by operation of law or otherwise, assigned or transferred or purported to assign and transfer to any person whomsoever any Released Matter or any part or portion thereof, or any claim, demand or right against the other. Each of the parties shall indemnify and hold harmless the other from and against any claim, demand, damage, debt, liability, act, reckoning, obli- gation, cost, expense, lien, action, or cause of action (including payment of attorneys' fees and costs actually incurred whether or not litigation be commenced) based on or in connection with or arising out of any such assignment or transfer or purported or claimed assignment or transfer. 111. BENEFICIARIES 3.0 This AGreement is not for the benefit of any person who is not a party signatory hereto or specifically named a beneficiary in this paragraph. Agreement and the releases contained herein shall extend to and inure to the benefit of, and be binding upon, in addition to the parties hereto, just as if they had executed this Agreement: the respective legal predecessors, successors and assigns of the parties; each and every entity which now is or ever was a parent or subsidiary of Collins; the respective The provisions of this -a- I I past and present officers, shareholders, officials, directors, partners, employees, trustees, beneficiaries, and attorneys of the parties and/or of each such parent or subsidiary entity, and their respective legal successors and assigns; and each of the foregoing. IV. GENERAL 4.1 This Agreement and the releases contained herein affect the settlement of claims which are denied and disputes which are contested, and nothing contained herein shall be construed as an admission by any party hereto of any liability of any kind to any other party. Each party expressly denies that it is in any way liable or indebted to any other party 4.2 This Agreement constitutes and contains the entire agreement and understanding concerning the subject matter between the parties, set forth all promises and inducements made by any party to any other party with respect to any of the subject matter, and supersede and replace all prior negotiations, proposed agreements or agreements, written or oral. Each of the parties acknowledges to each of the other parties that no other party nor any agent or attorney of any -9- I 4 9 other party has made any promise, representation or warranty whatsoever, express or implied, written or oral, not contained herein concerning the subject matter hereof to induce it to execute this Agreement, and each of the parties acknowledges that it has not executed this Agreement in reliance on any promise, representation or warranty not contained herein. 4.3 Each party acknowledges to each of the other parties that it has been represented by independent legal counsel of his own choice throughout all of the negotiations which preceded the execution of this Agreement and that it has executed this Agreement with the consent and on the advice of such independent legal counsel. Each party further acknowledges that it and its counsel have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of this instrument prior to the execution hereof and the delivery and acceptance of the consideration specified herein. 4.4 This Agreement and any other documents referred to herein shall in all respects be interpreted, enforced and governed by and under the laws of the State of California applicable to instruments, persons and transactions which have legal contracts and relationships solely within the State of California. Counsel for all parties have read and -10- J , approved the language of this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning, and not strictly for or against any of the parties. 4.5 As used in this Agreement, "persons" includes natural persons, corporations, partnerships, joint ventures and any other entity. 4.6 Whenever in this Agreement the context so requires, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular to refer to and include the plural. 4.7 This Agreement may be executed in counterparts and shall become effective when all parties have executed and acknowledged at least one counterpart and counterparts executed and acknowledged by all parties have been delivered to counsel for the parties. 4.8 The titles of the various articles of this Agreement are used for convenience of reference only and are not intended to and shall not in any way enlarge or diminish -11- 1 c 1 b the rights or obligations of the parties or affect the meaning or construction of this document. IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first written above. GROVE APARTMENTS INVESTMENT CO., a partnership By : Its: H.F.H., LTD. By : Its: HARRY J. L. FRANK, JR. BERNARD CITRON TRUST By : Its: FRED A. BARTPIAN, JR. MARITAL TRUST UNDER THE WILL OF WILLIAM S. BARTMAN By : Its: -12- . RESIDUARY TRUST UNDER THE WILL OF WILLIAM S. BARTMAN BV : Its: COLLINS DEVELOPMENT CORPORATION, a corporation By : Its: THE CITY OF CARLSBAD By: Its: -13- I J J 9 APPROVED AS TO FORM AND CONTENT: b SIDLEY & AUSTIN By : Howard J. Rubinroit Attorneys for Grove Apartments Investment Co.; H.F.H., Ltd.; Harry J. L. Frank, Jr.; Bernard Citron Trust; Fred D. Bartman, Jr.; Marital Trust under the. Will of William S. Bartman, Residuary Trust under the Will of William S. Bartman Vincent Biondo, Jr. City Attorney, City of Carlsbad By: Attorneys for Collins Development Corporation HJR187C -14-