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1998-722033 BARTZ & McCARBERG LLP ATTORNEYS AT LAW ! 0 ! 0 SECOND AVENUE, SUITE 1909 LIN DA D. BART'Z SAN DIEGO, CALIFORNIA 92101 ~4910 PEGGY J. McCARBERG TELEPHONE (619) 237~5 ~ 37 FaCSimile (619) 237-5110 DENniS L. SHIELDS, OF COUNSEL DATE: December 14, 1998 VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Deborah Cervone, City Clerk City of Encinitas 505 S. Vulcan Avenue Encinitas, CA 92024 Dear Ms. Cervone: CITY OF ENCINTAS v. HINSVARK. et al. San Diego Superior Court Case No. N-073948-1 North County Branch Enclosed is the original recorded copy of the Final Order of Condemnation in the above-entitled action which was authorized by Resolution of Necessity No. 97-03. Said Final Order was recorded on November 5, 1998, No. 1998-0722033 of Official Records of the San Diego County Recorder. As you know, the Final Order of Condemnation has the same effect with reference to acquisition of City property as does a deed conveyin~ property. It is therefore suggested --that this Final Order of Condemnation be documented and filed for safekeeping in the same fashion as are deeds. Sincerely yours, Enclosure cc: Lloyd Holt, Sr. Civil Engineer Chris Calkins, Carltas Company County Tax Collector (w/enclosure PLEASE CO~(PLETD THIS INFORMATI ~ECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: 8~! DIEGO COU~ffY ~'.ECO?DE[:'S OFFICE ~ ~ 0 FEES: 0.00 Of ~18 SPACE FOR ~E( 1998-0722033 (Please fill in d~ument title(s) on ~e ~is line) THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) R¢c,Form #R25 (7/3/97} 685 0C7 19 1998 VISTA BRANCH ~0 ~ CAL SEC~ON 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO NOR?H COUNTY ,...TUDICIA~ DISTRICT C~Y O~ ~NC~N]TAS, a public CAS~ NO. a~ency, FINAL ORDER OF CO~E~ATION Plaintiff, ~ET~ D. HINSV~K; BENJ~IN I/C ~GE: J. F~IN; J~ES R. WATSON; Hon. J. Morgan Lester et al., Defendants. A Judgment of Conde~ation having been entered in the above- entitled action pursuant to California Code of Civil Procedure ("CCP') Section 668.5, in the County of San Diego, State of California; and IT APPEARING to the satisfaction of the Court that Plaintiff, City of Encinitas ("CITY"), has paid the total amount of just compensation awarded by the Court for all the interests of the Defendants in the real property described in the Complaint in Eminent I Domain as portions of Assessor Pareel No. 255-020-04. IT IS ORDERED, AD31iDGED AND DECREED that the following described real property is condemned to become the property of CITY: 5 See attached Exhibits '~A" and "B". IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a certified copy of this Final Order of Condemnation shall be filed in the office the County Recorder of the County of San Diego, State of California, and upon filing, full title to the above-described real property shall vest in CITY, its successors and assigns, and that all liens I1 12 and encumbrances of whatsoever nature against said property shall be I3 terminated, canceled and extinguished. 14 Dated: ,~i' ~ ~ ~998 J. ~O~~ 15 JUDGE OF THE SUPERIOR COURT 16 Final Order of Condemnation 17 Th~ foregoing instrument is a futL 18 APPROVED AS TO FORI~: copY of the origoaJ ofl file iA tMs office. Anest .... 0 (:: T 1 9 1998 19 BARTZ &~cCARBERG LLP KENNETH E. MARTONE ~ '-~ . .- ,/- Clerk cf the Superior Court of the State of Caliinmin, in and for the Coql(~C. Of San Diego, Atto~rneys for Plaintiff, -~ 22 THE CITY OF ENCINITAS 94 LAW OFFICES OF LOUIS E. GOEBEL ROBERT M. MILLER, ESQ. Attorneys for Defendants, KENNETH 27 D. HINSVARK, BENJAMIN J. FRANKLIN, and JAMES R. WATSON EXHIBIT 688 93 -1009-3 July 10, 1995 ECR/qINSV E~iqiB IT "A" AN EASEMENT FOR PU'~LIC ROB-D PO-R3OSES OVER, UNDER, A-LONG AND ACROSS k PORTION OF THAT CERT~2N R_E~_L PROPERTY IN TI-T~ COU1TI"F OF SAN DIEC-O A.S DESCRIBED IN GR.:.NT DEED RECORDED M~-~CH 6, !987 AS FILE NO. 89- 113361, MORE PA_RTICULARLY DESCRIBED AS FOLLOWS: PARCEL A: BEGINNING AT Tk'E SOu'£~---~T CORNER OF T9-= PROPERT%f'DESCRI~ED IN SAiD G.R.~/T? DEED; .~X.~NCE NORTE 4: 36' 20" WEST 2S3.98 FEET A_L. ONG ._%X.~ F_3_ST'E~Y LiNE OF SAID PROPERTY TO A NON-TADiG~--NT' 8,925.40 FOOT P_~'.DiUS C%-~VE, CONCA. VE WESTERLY, A FuU. DiA. L TO SAiD C-u?,VE BED33 S0%'-5X_.~ 8? 24' 52" T~-----~NCE SOUTi..~.'E-RLY A~ONG SAiD C%?.%-E Ti'~OUGE A CENTP,.:_L A_NGLE OF 0~ 55' 38" A_N A_RC DISTA-NCE OF 144.44 FEET'TO A POi_N-T, A P_~.DIA_L TO SAiD POINT RE~_RS SOUTk' $8: 29' 14" EAST, SAID POINT BEING A POINT ON TI--~ A_RC OF A NON-T~-NGENT 8919.40 FOOT P3_DiUS CURVE, A DDiAL TO Si~-iD POINT ON SAID Uun%~ BF~_RS SOu'l'£ 89: i0' 51" Tg.-~NCE SOUTF~,RLY ~ONG ~qE A-RC OF SAID Cb-EVE T~.2qOUGE A CE/~'I".~-~ ANGLE OF 0© 54' 04" A_N ~_RC DiST~_NCE OF 140.28 FEET TO A POINT, A RADIAL TO SAID POi.NT BF3_~S SOUT~.i 88: !6' 47" F_AST SAID POINT BEING ON T~iE SOOT~RLY LINE OF SAID PROPERTY; T?~NCE A_LONG SAID SOI/T~LERLY LiNE NORTh. S6© 46' 00" EAST 28.60 FEET TO THE- POINT OF BEGINNING. A_R_EA = 3967 SF = 0.09 ACRES P-age 1 of 6 .~ 689 PARCEL B: AN EASEMENT FOR SLOPE RIGi-ITS A_ND MAiNTENi=_NCE PUR_:OSES OVER, UNDER, ALONG AND ACROSS A PORTION OF SAID PROPERTY DESCRIBED IN TI-.____. ~30 =F. EMENTiON-ED GPG~_NT DEED, MORE Pi~_~TICLrL~3..LY DESCRIBED AS FOLLOWS: BEGINNING AT TI-.= SOUT!-.?_~.ST C09_N-ER OF TI~IE PROPERTY DESCRIBED IN Si=rD DEED; - TP~?-I~CE SO[7iq{ 86© 46' 00" WEST 28.60 FEET Ar.ONG ~ SOu'r~LERLY LIN~- -DF SAID PROPERTY- TO _¢9.iE TRUE POINT OF BEGINNING; .~ _T~-._'ENCE CONTiNUiNG ALONG SAID SOUTI-.-L.rR-LY LINE SOUT:.-i 86 a 45' 00" W'E_ST !'~.:.00 FEET; -.T~.'TNCE NOR-~q~.' !: 04' 23" F3.ST 150.36 FEET; Ti~ENCE NORTH !a 35' 39" WEST, 250.00 FEET TO A POINT ON TF---- A-~C OF A 1,230 FOOT R_:3iUS CUR%-E, CONCAVE EASTEF~LY, A .~-3i.~--~. TO SAiD POINT BE~_~S SOu'i'H 800 !0' 24" W-E-ST, SAID. POINT BEING ON T~-~-. W'ESTERLY RiG.'-:T OF WAY OF ROAD SLr~%~.Y 682; T!-.iEI~CE SOUTIn_ERLY A_L~.ONG T~LE A_RC OF SAID CURV~_ TI--LROUGE A CEl~'l'i~_~_r. ANGLE OF 4° 21' 35" A_N ARC DISTANCE OF 93.59 FEET TO A POINT, A R.~.DIi~r, TO SAID POINT BE3~_RS SOUTH 75: 48' 49" W-EST, SAID POINT BEING A POINT ON THE E3.STERLY LIATE OF SAID PROPERTY; %'~iEI~CE ALONG SAiD F3~TERLY LI-N'E SOUTH =-° 36' 20" EAST, 33.47 FEET TO A POINT ON T~~-- A_~C 07' AN 8,925.40 FOOT P--:.DIUS C-u'RVE, CONCAV-E- W'ESTERLY, A R-~.Di-~, TO SAID POINT BE~_qS SOUTIq 89a 24' 52" EAST, SA--rD POINT BEING ON T~-..~ WESTERLY LI.NE OF PARCEL A F--'--~REINABOVE DESCRIBED; TI-IENCE SOLTTk~.RLY A--~.ONG THE ARC OF SAID CU-R%-E~ T~iROUGF. A CE1TTRA.~ ANGLE OF 0~ 55' 38" A/¢ A-~C DISTANCE OF 144.44 FEET TO A POINT, A 690 RADIAL TO SA. ID POINT BEAP~ SOUTI{ 88° 29' l&." EAST, SAID POINT BEING ON TF.E g-RC OF AN 8,9!9.40 FOOT RADIUS CURVE, CONCAVE WESTERLY, A P3~DIAL TO SAID POINT BEARS SOUTE-89' 10' 51" F3.ST; THENCE SOUTHERLY ALONG ~ ARC OF SAID CUrVE TI-iROUGI~ A CENTRAL A_NGLE OF 0: 54' 04" A.N A_~C DISTANCE. OF 140.28 FEET TO A POINT, A P-~.DiA_L TO SAID POINT BEARS SOUTH 88° 16' 47" F3.ST, SAID POINT BEING T-~- TRUE POINT OF BEGIN'NiNG. AR.EA = 5301 SF = 0.12 ACRES. / A T~MBORA_~Y F3--cE~-N-T- FOR CONSTRUCTION PL-RPOSES .OVER, UNDER, A~.ONG A~ND ACROSS A PORTION OF SAiD PROPER?f DESCRIBED iN ~ - A_rOF~NTiONED G_n~N'T DEED, MORE P_~_~TiC~__.LqL. Y DESCriBED AZ FOLLOWS: BEGi-N-NiNG AT Ti~ SOUTI--~---AST COR_N~P. OF TEE PROPERTY DESCRIBED IN SA--rD DEED; ,. Ti~ENCE SOb~iq-.i 86~ 4~' 00" W~ST 40.60 FEET A~ONG TI-7~ SOUTHERLY Lih~ OF SAiD PROPERTY TO T~-c TRUE POINT OF BEGINNING; THENCE CONTIAVJiNG Ar,ONG SAID S0OTHERLY LIllE SOLTIS{ 86: 46' 00" WEST 5.00 FEET; ~NCE NORTi-i 1~ 04' 23" EAST 150.36 FEET; T~qENCE NORTk' 1° 35' 39" WEST 282.35'FEET TO T!-.~ NORTI~ERLY LI~N-B OF SAID PROPERTY; TS-IENCE NORTE 90~ 00' 00" B~.ST 2.00 FEET ALONG SAID NORTFiERLY Li-N'E TO A POINT ON THE A_~C OF A 1,230 FOOT P-~_DIUS curVE, CONC_:.VE EASTERLY, A R,n-D!.~, TO SAID POINT BEA_qS SOUTH 8!~ 12' 51" W-EST, SAiD POINT BEING ON T~?- W~STERLY RIGHT OF WAY LI.N-E OF ROAD SURVEY 682; Tb---~NCE SOURLY A_LONG SAID RIGHT OF WAY LINE TI{ROUGE A CENTRAL ANGLE OF 1: 02' 27" ~ ~C DiSTanCE OF 22.34 FEET TO A POI~, A ~I~ TO SAID POI~ B~ SO~ ~0: i0' 2~" W~ST, SAID POI~ BEING A POI~ ON ~ ~STE~Y LI~ OF P~CEL B F~IN~O~ DESk!BED; ~CE SO~i !: 35' 39" ~T 2~0.00 FEET; ~NCE SO~ 1~ 0~' 23" ~ST 150.3~ FEET TO ~ TR~ POI~ OF ~_~ = 2!26 SF = 0.05 A~S. ~ TE~S OF SAID TEMPO~Y WOrKiNG ~E~ SFS~L BE SELF .-E~ING ~ S~L~L EXPi~ O~ Y~ ASTER ~i-~ COMPlETiON OF IMPRO~Y~S TO EL C~iNO ~ AS SEOh~' ON CI~ OF -NC_N .... .=~ ACCEPT~=NCE ~OF ~Y THE CiTY 0F DP~AWiNG NO. 3957-i ~=~ ENCiNiTA~. "- .'" " 93-1009 ~ 8 ~ 1995 LBHINSV EXHIBIT A AN F_3.SEMENT FOR PUBLIC ROAD PUI~:OSES, O~i<, UNDER, ALONG AND ACROSS A PORTION OF TbL~.T PEAL PROPERTY IN TI'-~ COUNTY OF S~_N DIEGO, STATE OF CALIFORNIA, AS DESCRIBED IN GP~.NT DEED RECORDED F3-RCH 6, !987 AS FILE NO. 89-113361, MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL ~.' BEC-iNT~iNG AT T?'~ SOUTS----.AST CORNER OF Th---' PROPERTY DESCRIBED IN SAiD GR-~-NT DEED, A POINT LYING NORTH 42' 46' 35" ~-EST, 76.87 FEET FROM EL C.~-MiNO RF3_L CENTERL-rNE STATION $1+!5.97 B.C. '(STATiONiNG PER R.S. !800-!); TS'~NCE SOUTH SS' 46' 00" ~-EST, ALONG ~ SOUT?.'ERLY L_T.hrE OF SAiD PROPERTY, 357.61 FEET TO T!'.----~ TRUE_ POINT OF BEGr_.NNTNG; TP~-NCE CONTINUING ALONG SAID SOu'rn~l~LY LiNE SOu%'H 86' 46' 00" WEST !02.76 FEET TO THE SOu%'HW-EST COR/TER OF SAID PROPERTY; THENCE NORTH 00' 00' 00" EAST, ALONG TSL~_ WESTERLY L!.N--a OF SA-rD PROPERTY, 27.36 FEET TO A POINT ON A 1332 FOOT RADIUS CURVE_, CONCAVe_ NOR_"X~_.P. LY, A RADIAL TO W-~ICH BE~.RS SOUTH 14' 07' 34" ~-EST; TI~_NCE LEAVING SAID LINE~,. F3.STERLY ALONG TP'f~ ~_qC OF SA-rD C%-RVE, TI-IROUGH A CEIi..uw3~L ANGLE OF 04' 30' 39" i~_~ ~_~C DISTANCE OF 104.87 FEET TO THE TRUE POINT OF BEGINNING. A.REA = 1332 SF = 0.03 ACP. ES Pa~e 5 of 6 A_N EASEMENT FOR P. ETAINING WALL CONSTRUCTION, SLOPE RIGHTS AND MAINTEN~_NCE P%~,_UOSES OVER, 5-NDER, ALONG AND ACROSS A PORTION OF SAID PROPERTY DESCRIBED IN THE AFORE~_~_NTION-ED GP, ANT DEED, MORE PA_RTiCULARLY DESCRIBED AS FOLLOWS: BEGINNING AT T?~ TRUE POINT OF BEGINNING OF P.~_RCEL A ABOVE_, A POINT ON A 1332 FOOT k~.DIUS cu~%-E, CONCAVE NORTI~'TRLY~ A RADIAL TO WHICH BP_A-RS SOUTH 09' 36' 55" W-EST; Tk-E-NCE W-ESTERLY 'AL. ONG Tk'E ARC OF SAiD cu.~-, TS----~OUGH A CENTRAL A_'~C-'~E 04° 30' 39", ~_N ~_RC DiST~_~CE OF !04.87 FEET TO A POINT ON T WHSTE.R_LY LINE OF SAiD PROPERTY; THENCE NORTH 00' 00' 00' F3.ST, ALONG SAiD WESTER.LY Li_N'E 31.40 FEET; TP~ENCE !.FA'v'iNG SAID WESTE.RLY L!.N-E_, SO~-TH 50" 39' 05" EAST, 54.10 FEET; Tb.'ENCE SOUTH 79' 20' 52" EAST, 91.93 FEET TO A POINT ON THE SOUTHERLY LIi~E OF S~_ID PROPERTY; THENCE SOUTH 86' 46' 00" W-EST, ~.LONG SAID SOU'i't---LRLY LINE, 29.63 PEET TO THE POINT OF BEGINNING. A_R~A = 1358 SF = 0.03 ACRES P-a~ 6 of 6 EXHIBIT "B" ,,, ~, EXHIBIT B ----- : ' Db~TION AND EASEWENTS ~ 6 9 ;5 ON kP.N. 255-020-04 Ngo"OO'OO*E 425.~ A.P.N. 255-020-04 FOR. W 1/2, SE 1/4, SEC. 2, PER GRANT DEED RECORDED' .3-6-89 AS F/N 89-113361 ,.,, AREA = 4.50 ACRES L UOADIA SOULEvA D UNE I DIREC~ON I DISTAN~ F~C~ &: ~GHT OF WAT L6 SO4~'20'E 33.47 P~CD_ 5301 ~F. = ~.12 AC L7 S86'~'00~ 5.,~' ' B: SLOPE ~T L8 NO1 ~'~'E 150.36' PA~C~ ¢~ ~DORAEY W~K ~ NOl~5'3g"w ~8~ 35' - 212~ S.F. = 0.05 AC  CUR~ [ RADIUS I ~G~ I D~.TA 05 1230.0ff ~' 01~2'27' SH~ 1 OF I DH~T ~LY 10, Igg5 EXHIBIT LEUCADIA BOULEVARD DEDICATION " P.N 255-020-0~_~ / ~----- NgO'00'00"E 425.00' DEDICA~ON POR. O~ W 1/2, Si 1/4, ~ AREA = 1332 S.F.J OECD ~CO~DED ~, WALl.- ~ AREA = ~.~0 ACRES : ~ AREA = ~358 S.F. o 0' 2~' ~ ~ o. ./ o© ~/~ ~0' ~i:~ A.P.N. 255-020-0~ ~ ~ 1~ C~ _~ ~ L2 _ ~ ~ ~L3~ ~ - 8OULEVA~D WNE I OIR~C~ON I ~ OlSTANC~ L1 ..... N~ ~ 3~ ~ ' ' 76,8T L5 N86'~'~'~ 10Z76' LC SC~O'~'E 27.36' L5 N88'~'~"E 29.63' L6 S79~0'52% 91 L7 N50~9'05"~ 54.10' L8 SOO~O'0O"E 31.~' C'",J R 'YE I R~,0:VS I LENGTH j OELTA j O1 1332.00' 10'4-87' SHEET 1 OF 1 SHEET * PER R.S. 1800-1 JN 93-1009 MAY 18,1995 BARTZ & McCARBERG LLP ATTORNEYS AT LAW 1010 SECOND AVENUe, SUITE ~ 909 LIN DA D. BARTZ SAN DIEGO, CALIFORNIA 92101-4910 PEGGY J. MDCARBERG TELEPHONE (619) 237-5137 FACSIMILE (619) 237-5110 DENNIS L. SHIELDS, OF COUNSEl October 30, 1998 Jim Benson Assistant City Manager City of Encinitas 505 S. Vulcan Avenue Encinitas, CA 92024 Re: City of Encinitas v. Hinsvark. et al, Enclosed please find: Fully executed duplicate original of Mutual Release and Settlement Agreement __ For your review. __ Per your request. XX For your information and files. __Via Certified Mail return receipt requested. __ Please sign and return. Retain copies for your files. Other: If you require additional information, please contact our office. Sincerely yours, Kris Boggis Paralegal to Linda D. Bartz MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement (hereinafter "Agreement") is entered into by and between Kenneth D. Hinsvark, Benjamin J. Franklin and James R. Watson, each Individually and formerly doing business as Olivehain Land Company (hereinafter collectively "Property Owners") the City of Encinitas, a municipal corporation (hereinafter "City") and Cadtas Company, a California limited partnership (hereinafter "Carltas"). I RECITALS Property Owners own certain real property located in the City of Encinitas, County of San Diego, State of California, commonly referred to as Assessor Parcel Number 255-020-04 (hereinafter "the Property"). The Property is located within the Encinitas Ranch Specific Plan. City has implemented a public project to widen E1 Camino Real and extend Leucadia Boulevard (hereinafter "the Project"). On or about February 13, 1997, City brought a Complaint in Eminent Domain, San Diego Superior Court Case Number N073948, to take portions of the Property for the Project. On or about November 15, 1994, Property Owners filed a petition for writ of mandamus, and other actions, San Diego Superior Court Case Number N65812, relating to the Environmental Impact Report for the Encinitas Ranch Specific Plan. In addition, Property Owners have contemplated and threatened future and as yet unfiled litigation relating to the Property, the Encinitas Ranch Specific Plan, and alleged actions and/or omissions of the City and/or Carltas in connection therewith. The parties, and each of them, desire to enter into a mutual settlement and concurrent mutual release of all claims and rights associated with or arising out of the lawsuits referenced in the paragraph above, on the terms and conditions set forth herein. CONSIDERATION The parties expressly agree and stipulate that: A. In the Eminent Domain litigation, Case Number N073948, a Final Order of Condemnation shall be prepared and filed with the court in order to pass all right, title and interest to the rights of way for road improvements, and appurtenances thereto, for the widening of El Camino Real and the extension of Leucadia Boulevard to the City of Encinitas. B. The Property Owners shall deed, by Grant Deed, to Carltas Company's designee: OPEN SPACE HOLDING, LLC, a California Limited Liability Company, all right, title and interest in the remainder of the Property. C. Carltas shall pay a total of Two Hundred Twenty Five Thousand Dollars and No Cents ($225,000.00) to the Property Owners. Said payment shall be by check made payable to the Attorney Client Trust Account of Louis E. Goebel on behalf of Kenneth D. Hinsvark, Benjamin J. Franklin and James R. Watson. Said check shall be made available to counsel for the Property Owners as soon as possible after, but in no event later than, forty eight (48) hours of delivery to counsel for the City of a copy of this Agreement fully executed by the Property Owners and approved as to form and content by their counsel. D. The acquisition of the Property is pursuant to the exercise of, and under threat of, the power of Eminent Domain. E. The City and Carltas reserve the right to allocate between themselves the costs of this settlement by separate agreement. F. In further consideration, the parties and each of them agree to authorize, and do hereby authorize, their attorneys to prepare and deliver to counsel for the parties hereby released any documents consistent with the terms and conditions of this Agreement which may be needed or required to effectuate the terms, conditions, covenants, and provisions hereof. G. In further consideration, the parties and each of them, understand, declare, and represent to the parties hereby released that they shall each bear all their attorneys' fees, experts' fees, and any and all other costs arising from or in connection with the above-described lawsuits, and all matters which am the subject of this Agreement. RELEASE A. GENERAL RELEASE: FOR AND IN CONSIDERATION of the payment of the above-described sum and transfer of property rights, and for other good and valuable consideration, the undersigned do hereby release, acquit and forever discharge the parties hereby released, and any and all of their agents, servants, employees, employers, partners, predecessors, successors, descendants, ancestors, dependents, heirs, executors, administrators, assigns, assignors, and if a corporation, the officers, directors, shareholders, agents, predecessors and successors-in-interest, assigns, employees, parent, affiliate and subsidiary corporations of that corporation, of and from all liability, claims, demands, actions, causes of action, damages (whether general, special, personal, property, contractual, exemplary, or otherwise), liens, costs, expenses, fees, compensation, controversies, judgments, and rights of whatever nature and kind that the undersigned may have against any and all of the parties hereby released, whether actual or asserted, present or prospective, known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which have existed or may have existed, or which do exist, or which hereafter can, shall or may exist, including but without limiting the generality of the foregoing, any and all claims which were, or might have been, or which could have been, alleged within those certain lawsuits described above, which files and contents therein are referred to and by such reference are incorporated herein to more fully describe the subject matter of this Agreement. B. WAIVER OF CIVIL CODE SECTION 1542: The undersigned understand, and therefore declare, that the injuries and damages claimed and alleged with the above-stated lawsuits are permanent, progressive, uncertain and indefinite. It is the intent of the undersigned that this Agreement shall be effective as a bar to all demands, liens, assignments, contracts, covenants, actions, suits, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, controversies, judgments, orders, and liabilities of whatever character, nature and kind, known or unknown, suspected or unsuspected, whether or not concealed or hidden, hereinabove specified to be so barred; in furtherance of this intent, the undersigned expressly, knowingly, and voluntarily waive any and all rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code, which reads as follows: "A genaral 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." REPRESENTATION BY PROPERTY OWNERS Property owners have not undertaken any investigation with respect to the presence or absence of hazardous wastes in, on or under the Property. The Property Owners have no actual knowledge with respect to the presence or absence of hazardous wastes in, on or under the Property. Except as provided in the immediately preceding sentence, the Property Owners make no representation or warranties with respect to the presence or absence of hazardous waste or with respect to any other matter related to the condition of the Property. V MISCELLANEOUS The following is further understood, agreed, declared and represented by the undersigned to the parties hereby released: A. COMPROMISE IS NOT AN ADMISSION: This Agreement is the compromise of doubtful and disputed claims and nothing contained herein is to be construed as an admission of liability on the part of the parties hereby released, or any of them, by whom liability is expressly denied. The payment or other consideration for this Agreement is not to be construed as an admission of liability on the part of the parties hereby released but construed to be pursuant to the terms and conditions of this Agreement and solely as a consequence of this Agreement. B. GOVERNING LAW: This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California effective as of the date of execution of this Agreement by the undersigned. C. BENEFIT AND BURDEN: This Agreement shall be binding upon the undersigned and the representatives, successors and assigns of the undersigned and shall inure to the benefit of the parties hereby released and their respective representatives, successors and assigns. D. SEVERABILITY: If any provision of this Agreement is held by a Court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions, conditions or covenants not so declared shall be deemed severable from the remainder of this Agreement and shall in no way affect any other provision, covenant, or condition herein contained. If such condition, covenant, or other provision shall be deemed invalid due to scope or breath, such shall be deemed valid to the extent of the scope and breadth permitted by law. E. WAIVER AND AMENDMENT: No breach of any provision hereof can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This Agreement may be amended only by a written agreement executed by the parties at the time of the modification. F. INDIVIDUAL AND PARTNERSHIP AUTHORITY: Any individual signing this Agreement on behalf of another individual, corporation, or partnership represents and warrants that he has full authority to do so. G. GENDER AND TENSE: Whenever required by the context hereof, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular, and the masculine, feminine and neuter genders shall be deemed to include the other. 4 H. COUNTERPARTS: The parties expressly agree that this Agreement may be executed in counterparts and that the signature pages may be attached and read as one document. I. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof, and fully supersedes any and all prior understandings, representations, warranties and agreements between the parties hereto, or any of them, pertaining to the subject matter hereof, and may only be modified and/or amended by written agreement signed by the parties hereto. J. INDEPENDENT ADVICE OF COUNSEL: The undersigned,, in executing this Agreement, further represent and declare to the parties hereby released, that they rely wholly upon their own judgment, belief, and knowledge of the nature, extent and duration of the claimed damages, and the advice and recommendations of their own independently selected counsel; and that by executing this Agreement the undersigned further represent and declare to the parties hereby released that they shall not deny the validity of this Agreement upon the ground that they did not have advice of counsel. K. WAIVER OF CONFLICT OF INTEREST: The undersigned, in executing this Agreement, further represent and declare that they, and each of them, have expressly waived any actual or potential conflict of interest that may exist in having concurrent representation by their respective attorneys, and that the undersigned by executing this Agreement represent to the parties hereby released that they shall not deny the validity of this Agreement upon the ground of any actual or potential conflict of interest. L. VOLUNTARY AGREEMENT: The undersigned further represent and declare that they have carefully read this Agreement, know the contents thereof, and that they have signed the Agreement freely and voluntarily; and, furthermore, the undersigned by executing this Agreement represent to the parties hereby released that they shall not deny the validity of this Agreement upon the ground they executed the Agreement under duress or without capacity. M. REPRESENTATIONS TO PARTIES HEREBY RELEASED: The undersigned further declare and represent that in giving this release or in executing this Agreement, they have not been influenced to any extent whatsoever by any representations or statements made by any persons, firm or corporations who are hereby released, or by any person or persons representing them. N. INTERPRETATION OF AGREEMENT: The undersigned acknowledge and agree that this Agreement is the product of draftsmanship by all sides and therefore agree that, in the event of any dispute arising concerning the interpretation of this Agreement or the terms thereof, that any ambiguities which may be found herein shall be interpreted according to the fair and reasonable meaning of the language used considering the stated intentions of the parties. Any rule of construction, to the effect that ambiguities are to be resolved against the drafting party, shall not apply in the interpretation of this Agreement. SUBSEQUENT DISPUTE BETWEEN PARTIES The parties may take action in law or equity required to enforce the rights under this Agreement. The prevailing party in any such action shall be entitled to recover from any other party, such sum as the Court adjudicates as beSng reasonable compensation~ for attorneys' fees and costs so incurred. Dated: [O~ ~"l ~ V r ~l~gnneth D. Hinsvark / Dated: Benjamin J. Franklin Dated: James R. Watson CARLTAS COMPANY, a California limited partnership Dated: By: Carltas Management, a California corporation Its: G /ptrO ns CITY OF E ~II?4IffAS Dated: By: SIGNATURES CONTINUE... N. INTERPRETATION OF AGREEMENT: The undersigned acknowledge and agree that this Agreement is the product of draftsmanship by all sides and therefore agree that, in the event of any dispute arising concerning the interpretation of this Agreement or the terms thereof, that any ambiguities which may be found herein shall be interpreted according to the fair and reasonable meaning of the language used considering the stated intentions of the parties. Any rule of construction, to the effect that ambiguities are to be resolved against the drafting party, shall not apply in the interpretation of this Agreement. SUBSEQUENT DISPUTE BETWEEN PARTIES The parties may take action in law or equity required to enforce the rights under this Agreement. The prevailing party in any such action shall be entitled to recover from any other party, such sum as the Court adjudicates as being reasonable compensation for attorneys' fees and costs so incurred. Dated: ~~. ~NNETH D. ~IIN~VARK Dated: (~Cxl{~,~ (_o; ( ~q ~ '~I~ENJAM~ C/- Dated: James R. Watson CARLTAS COMPANY, a California limited partnership Dated: By: Carltas Management, a California corporation Its: General Partner By: Christopher C. Calkins Its: President CITY OF ENCINITAS Dated: By: Its: SIGNATURES CONTINUE... N. INTERPRETATION OF AGREEMENT: The undersigned acknowledge and agree that this Agreement is the product of draftsmanship by all sides and therefore agree that, in the event of any dispute arising concerning the interpretation of this Agreement or the terms thereof, that any ambiguities which may be found herein shall be interpreted according to the fair and reasonable meanlug of the language used considering the stated intentions of the parties. Any role of consu'uction, to the effect that ambiguities are to be resolved against the drafting party, shall not apply in the interpret~on of this Agreement. SUBSEQUENT DISPUTE BETWEEN PARTIES The parties may take action in law or equity ~quired to enforce the fights un,er this A~reement The ~revailine nartv in any such acUon shall be entitled to recover ~rom any ~er partyl such ~um as ~e'Co~t adjudicates as being reasonable compensation for attorneys' fees and costs so incurred. Dated: Kenneth D. Hinsvark Dated: Benj~ J. Franklin . Dated: _ _/~ ~ ~ ~ [ ~ ~ ~" J~s'R. Watsbn . CAP~AS COMPANY, a Califorma limited partn~ship Dated: By: Carltas Management, a California corporation Its: General Partner By: Christopher C. Calkins Its: President CITY OF ENCIN1TAS Dated: By: Its: SIGNATURES CONTINUE... 6 SIGNATURES CONTINUED: APPROVED AS TO FORM AND CONTENT: LAW OFFICES OF LOUIS E. GOEBEL Dated: / 0~7~/~'O~ By: ~~~~- t M. Miller, Esq. Attorneys for Kenneth D. Hinsvark, Benjamin J. Franklin and James R. Watson B ART~'~.,'McCARBEI~G LLP Dated: /0/~/~¢ B y~/' '~'-~, ~/~" f ~inda D. B~z, ~q. ~ Attorneys for City of Encinita~d C~ltas 7 BARTZ & IVicCARBERG ATTORNEYS AT LAW 1010 SECOND AVENLJE~SUITE 1909 SAN DIEGO, CALIFORNIA ~2101-4910 LINDA D. BARTZ TELEPHONE (619) 237-5137 PEGGY J. NlcCARBERG FACSIMILE (619) 237-5110 April 24, 1997 Jim Benson, Assistant ~ ~ C.L~y Manager City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 RE: City of Encinitas v. Hinsvark, et al., Case No. N-073948 Dear Jim: Enclosed is a copy of the State Treasurer's Receipt for Deposit in the above referenced matter.