HomeMy WebLinkAbout1987-05-12; City Council; Resolution 90684
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-