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Home My WebLink About1986-03-04; City Council; Resolution 84231 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 RESOLUTION NO. 8423 hereby resolve as follows: 1. That certain agreement between the City of Carlsbad and Birtcher Business Center regarding acquisition of drainage easements adjacent to the southerly right-of-way of Palomar Airport Road, marked Exhibit "A" and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 4th day of March 9 1986 by the following vote, to wit: AYES: Council Members Lewis, Kulchin and Chick A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND BIRTCHER BUSINESS CENTER REGARDING THE ACQUISITION OF DRAINAGE EASEMENTS ADJACENT TO THE SOUTHERLY RIGHT-OF-WAY OF PALOMAR AIRPORT ROAD. The City Council of the City of Carlsbad, California, does 20 21 22 23 24 25 26 27 28 ABSENT: Council Members Cas1 MARY H. CASLER, Mayor CLAUDE A. LEWIS, Mayor Pro-Tem ATTEST: KAREN R. KUNDTZ, Deputy City Clerk (SEAL) AGREEMENT AN AGREEMENT BETWEEN THE CITY OF CARLSRAD AND B I RTC HER REGARDING THE ACQUISITION OF CERTAIN EASEMENTS FOR STREET-AND OTHER PURPOSES AS REQUIRED FOR SUBDIVISION CT 82-4LPUD38, PALOMAR OAKS I i This Agreement is made this 20th day of AUGUST 1985 by and between the City of Carlsbad, California, a municipal corportion (hereinafter called "City") and BIRTCHER BUSINESS RECITALS A. Developer is required as a condition of Resolution - No. 1995 of the [City Council] [Planning Commission] of the City of Carlsbad, approving with conditions Tentative Map CT 82-4/puD 38 I to dedicate and provide certain improvements to wit: ADDITIONAL DRAINAGE EASEMENTS AND DRAINAGE STRUCTURES SHALL BE PROVIDED OR I NSTALLED I B. The acquisition and development of DRAINAGE EASEMENTS AND DRAINAGE STRUCTURES as an off-site improvement for the subdivision is essential to 'provide needed public facilities for the subdivision and to mitigate the public facilities burdens created by the subdivision. C. It is necessary that Subdivider secure said easement and install improvements thereon and in accordance with specifications of the City of Carlsbad. D. Subdivider has been unable to acquire by a negotiated purchase the required easements for street and other Exhibit A purposes for the subdivision, and requests that the City assist in the acquisition by exercise of the City's power of eminent domain. E. This Agreement is authorized by and is entered into pursuant to Section 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the state Government Code. NOW, THEREFORE, in consideration of the mutual covenants contained herein and of the recitals, it is mutually agreed by and between the parties as follows: 1. Subdivider agrees to retain on behalf of the City a qualified attorney or attorneys to prepare and file on behalf of the City all documents, pleadings and process necessary to acquire the required easements through an action in eminent domain. Said attorney or attorneys will either be associated with the City - Attorney in the eminent domain proceeding, or will independently pursue the eminent domain action on behalf of the City, as the City in its discretion determines. The attorney or attorneys shall be approved by the City Attorney and subdivider agrees not to replace the attorney or attorneys without the City Attorney's consent. The City Attorney's approval or consent shall not be unreasonably withheld. 2. Subdivider agrees to bear all expenses, costs, fees, and charges, including attorneys', engineers, appraisers or other professional service fees incurred or charged in connection with the acquisition of the various property interests and the preparation and prosecution of the eminent domain proceeding, and 3-- City shall assume no responsibility for said amounts. There shall be no charge for City staff time associated with this project. 3. It is understood and agreed that even though the City is party plaintiff, it shall assume no financial responsibility in said eminent domain action and that as further proceedings are required, outside counsel shall assume primary responsibility and direction of any actions subject to any necessary approvals of the City. The City agrees to cooperate and assist in commencing and prosecuting said condemnation action in an expeditious manner for the purpose of completing same as soon as reasonably possible in accordance with applicable laws. 4. Subdivider shall retain at its sole expense any appraiser, engineer or other expert witness, as mutually agreed - upon by Developer and City, to provide any necessary appraisal, engineering or other information in a form suitable for use in connection with said condemnation proceedings. Any appraiser, engineer and other expert witness required shall be paid directly by Subdivider. City shall assume no responsibility for such payment. 5. Subdivider shall pay all amounts, plus interest, as required as a result o€ any judgment or settlement in payment for easements to be acquired. City shall assume no responsibility €or said payments. 6. The parties hereby agrees to seek an order of immediate possession €or the real property necessary for the improvements 'and facilities and related easements and comply with the legal procedures necessary therefor. The subdivider shall be -3- responsible for the deposit of funds, ,posting of security, or payment of any costs associated with the order of immediate possession. 7. City retains the right to assume primary responsibility for the subject ligitation at any time and to prosecute it to completion with all costs, including attorneys' fees, to be borne by the Subdivider. 8. It is understood that prior to the initiation of any eminent domain proceedings, it will be necessary for the City in its sole discretion to adopt a resolution of necessity for the acquisition of the property and to make the necessary findinqs as required by law. The adoption of a resolution of necessity shall be a condition precedent to any obligation of the Subdivider herein. City agrees to use due diligence in processing the matter to hearing before the City Council in - order to ensure compliance with the time limits established by Section 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the state Government Code. Subdivider agrees that any failure by the City to comply with the time limits, however, shall not cause an invalidation of any condition of the tentative map or relieve the subdivider of any obligation hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ... ... 4. 7 ! DATED : CITY OF CARLSBAD A Municipal Corporation of the State of California by: MARY H. CASLER, Mayor ATTEST: ALETHA L. RAUTENKRANZ, City Clerk SUBDIVIDER BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE 11, a California limited partnership By: CAMPBELL-PALOMAR I1 , a Cal ifmn-ia- general partnership, General Partner By: BIRTCHER PACIFIC 11, a alifornia general partnership, artner A /.”- 5. ACKNOWLEDGMENT c STATE OF CALIFORNIA ) COUNTY OF ~M&v, L; ss 4 /-$ - On r /,x 19 $5- , before me, the undersigned, a NotAry Public in and for said State, personally appeared Kf&~n/fic~ f 6ji,&rcN&L , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be a partner of BIRTCHER PACIFIC 11, a California general partnership, which partnership is known to me to be a partner of CAMPBELL-PALOMAR I1 , a California general partnership, which partnership is known to me to be the general partner of BIRTCHER BUSINESS CENTER-CORPORATE FALOMAR PHASE 11, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of BIRTCHER PACIFIC 11, that said partnership executed the within instrument on behalf of CAMPBELL-FALOMAR 11, and that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS . CENTER-CORPORATE PALOMAR PHASE 11, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE I1 executed the same. ( WITNESS my hand and official seal. d7-h- / NOTARY PUBLIC e[r* L. cun?m//t/~g Name (Typed or Printed) (SEAL) BBC-CP/CPII .i c. ACKNOWLEDGMENT < " STATE OF CALIFORNIA COUNTY OF Lh7L ; ss /"- 'I On LL /y , 19p5-, - before me, the undersigned, a Notary Public in and for said State, personally appeared ROBERT M. CAMPBELL, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be a partner of CAMPBELL-PALOMAR 11, a California general partner- ship, which partnership is known to me to be the general a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of CAMPBELL-PALOMAR 11, that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE 11, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE I1 executed the same. partner of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE I1 - WITNESS my hand and official seal. c. \J NOTARY PUBLSC Name (Typed or Printed) (SEAL)