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Home My WebLink About1986-03-04; City Council; 8538; Agreement Birtcher Business Center Condemnation Along Palomar Airport Road CT 82-04L I ' * .. n a w =. 0 a 2 I. 2 0 F 0 i a 0 z 3 0 0 ClPOF CARLSBAD - AGENQBILL DE BUSINESS CENTEH FOR CONDEMNATION OF cI1 (CAR\ CI' "#- TITLE. MTG. 3/4/86 DEPT. RECOMMENDED ACTION: AGREEMENT BETWEEN CITY AND BIRTCHER ENG PROPERTY ALONG PALOMAR AIRPORT ROAD SRAD TRACT 82-4) By motion, adopt Resolution No. fd& approving an ai ment between the City of Carlsbad and Birtcher Business CI regarding the acquisition of drainage easements alo southerly portion of Palomar Airport Road. ITEM EXPLANATION As a condition to the approval of Carlsbad Tract 82-L owner is required to improve the existing drainage adjacent to the southerly right-of-way of Palomar Airport along the project boundary. Council has approved tentative maps on both sides ( subject property with the requirement to improve the dr way adjacent to the right-of-way of Palomar Airpor (Carlsbad Tract 82-4, Birtcher Business Center and Ca Tract 82-25, Ukegawa). The owner of the subject property has been contact1 attempts have been made to purchase easements fo extension of the drainage way. The agreement provides that the developer will pay a necessary costs incurred with the condemnation procee Upon approval of the agreement, the City will work wi developer to retain an attorney, order the title rep01 retain an appraiser. FISCAL IMPACT None. EXHIBITS 1. Location Map 2. Resolution No. f& approving an agreement betw City of Carlsbad and Birtcher Business Center re the acquisition of drainage easements along a so portion of Palomar Airport Road, -_I-- 3. Letter of Intent dated November 5, 1985 attachments. 4. Letter of Attempt to Purchase Property dated Decei 1985 Jt I \ . I - LOCATION MAP mWS# CONDEW UKEGAWA PARCEL ALADRAY PARCEL WEST OAKS WAY PALOMAR OAKS WAY VlClNfl N.l PRO, NO, ~~82. PROJECT NAME PA LOMAR AIRPORT ROAD CONDEMNATfON 4 F c I '1 "I .1 i 2 3 4 5' 6 7 81 9 10 11 12 13 a e RESOLUTION NO. - 8423 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, Califorr hereby resolve as follows: 1. That certain agreement between the City of and Birtcher Business Center regarding acquisition of easements adjacent to the southerly right-of-way o Airport Road, marked Exhibit "A" and made a part h hereby approved. 2. That the Mayor of the City of Carlsbad I 141 l5 authorized and directed to execute said agreement 1 behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meet. I l6 i l7 I 1 Carlsbad City Council held on the 4th day of - 23 MARY H. CASLER, Maya CLAUDE A. LEWIS, Mayor 1 0 r' a *-. 'r' .. AGREEMENT AN AGREEMENT BETWEEN THE CITY OF CARLSRAD AND B I RTCHER REGARDING THE ACQUISITION OF CERTAIN EASEMENTS FOR STREET AND OTHER PURPOSES AS REQrJIRED FOR SUBDIVISION CT 82-4APUD38, PALOI4AR OAKS I I day of AU This Agreement is made this - 20th - 1985 by and between the City of Carlsbad, California, a municipal corportion (hereinafter called "City") and BIRTCHE CENTER -CORPORATE PALOMAR Phase II (hereinafter called llSubdividc RECITALS A. Developer is required as a condition of Resol No. 1995 of the [City Council] [Planning Commission] City of Carlsbad, approving with conditions Tentative Map 82-4/PUD 38 , to dedicate and provide certain improvements t ADDITIONAL DRAINAGE EASEMENTS AND DRAINAGE STRUCTURES SHALL BE PROVIDE I NSTALLED B. The acquisition and development of DRAINAGE EA DRAINAGE STRUCTURES as an off-site improvement for the sub( is essential to provide needed public facilities for the subdivision and to mitigate the public facilities burdens by the subdivision. C. It is necessary that Subdivider secure said 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 anc Exhi 0 I,. e .I 7 purposes for the subdivision, and requests that the City a in the acquisition by exercise of the City's power of emin domain. E. This Agreement is authorized by and is enterec pursuant to Section 20.16.095 of the Carlsbad Municipal COC Section 66462.5 of the state Government Code. NOW, THEREFORE, in consideration of the mutual co contained herein and of the recitals, it is mutually agree and between the parties as follows: 1. Subdivider agrees to retain on behalf of the qualified attorney or attorneys to prepare and file on beh the City all documents, pleadings and process necessary tc the required easenents through an action in eminent domair attorney or attorneys will either be associated with the C Attorney in the eminent domain proceeding, or will indeper pursue the eminent domain action on behalf of the City, as City in its discretion determines. The attorney or attorr shall be approved by the City Attorney and subdivider agrc to replace the attorney or attorneys without the City Attr consent. The City Attorney's approval or consent shall nc unreasonably withheld. 2. Subdivider agrees to bear all expenses, cost and charges, including attorneys ' r engineers, appraisers professional service fees incurred or charged in connecti the acquisition of the various property interests and the preparation and prosecution of the eminent domain proceed -2- 8 0 0 .I City shall assume no responsibility for said mounts. There be no charge for City staff time associated with this projec 3. It is understood and agreed that even though tl is party olaintiff, it shall assume no financial responsibi said eminent domain action and that as further proceedings l required, outside counsel shall assume primary responsibilii direction of any actions subject to any necessary approvals City. The City agrees to cooperate and assist in commencin prosecuting said condemnation action in an expeditious mann the purpose of completing same as soon as reasonably possib accordance with applicable laws. 4. Subdivider shall retain at its sole expense ar appraiser, engineer or other expert witness, as mutually a? upon by Developer and City, to provide any necessary apprai engineering or other information in a form suitable for US( connection with said condemnation proceedings. Any appraii engineer and other expert witness required shall be paid d by Subdivider. City shall assume no responsibility for su payment. 5. Subdivider shall pay all amounts, plus intere required as a result of any judgment or settlement in payr easements to be acquired. City shall assume no responsibi said payments. 6. The parties hereby aqrees to seek an order o! immediate possession €or the real property necessary for improvements and facilities and related easements and corn] the legal procedures necessary therefor. The subdivider -3- 0 0 . . I*. responsible for the deposit of funds, Dosting of Security, payment of any costs associated with the order of immediat possession. 7. City retains the right to assume primary responsibility for the subject ligitation at any time and prosecute it to completion with all costs, including attor fees, to be borne by the Subdivider. 8. It is understood that prior to the initiation any eminent domain proceedings, it will be necessary for t City in its sole discretion to adopt a resolution of neces for the acquisition of the property and to make the necess findinqs as required by law. The adoption of a resolution necessity shall be a condition precedent to any obligation the Subdivider herein. City agrees to use due diligence i processing the matter to hearing before the City Council j order to ensure compliance with the time limits establish€ Section 20.16.095 of the Carlsbad Municipal Code and Sectj 66462.5 of the state Government Code. Subdivider agrees I any failure by the City to comply with the time limits, hc 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 exec1 this Agreement on the day and year first above written. ... ... 4. c a (. 1 , t e DATED: Z??&uU 7 /9/?6 CITY OF CARLSBAD A Municipal Corporation of the State 08- California I 4) ./ L by : ;$dy/~m- -I / -I d- M RY H. CASLER, Mayor F.TT E S T : CLAUDE A. LEWIS, Mayor Pro-Tern &,zZ 4REN R. KUNDTZ, Deputy City Clerk SUBDIVIDER BIRTCHER BUSINESS CENTER-CORPORATE a California limited partnership By : CAMPBELL-PALOMAR I I , a Cal i fou general partnership, General F By: BIRTCHER PACIFIC 11, a La By : / 5. , 0 e & ACKNOWLEDGMENT c STATE OF CALIFORNIA ) COUNTY OF 1 ss 1 ,-- /, , before me, the undersigne State, personally appear , personally known to me ( isfactory evidence) to be t person who executed the within instrument and who is known me to be a partner of BIRTCHER PACIFIC 11, a California gener partnership, which partnership is known to me to be a partr of CAMPBELL-PALOMAR 11, a California general partnership, whS partnership is known to me to be the general partner California limited partnership, the limited partnership t1 executed the within instrument, and acknowledged to me that executed the within instrument on behalf of BIRTCHER PACII 11, that said partnership executed the within instrument behalf of CAMPBELL-PALOMAR 11, and that said partners1 executed the within instrument on behalf of BIRTCHER BUSINI CENTER-CORPORATE PALOMAR PHASE 11, and that BIRTCHER BUSINI CENTER-CORPORATE PALOMAR PHASE I1 executed the same. BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE 11, WITNESS my hand and official seal, c RITA L. CUMMINGS ,, - .,-+:/2-, '/L ' Name (Typed or Printed) / I (SEAL) BBC-CP/CPII. 1 i, T il) I) *. *. ACKNOWLEDGMENT C' STATE OF CALIFORNIA ) r' 1 ss COUNTY OF 1 I , 19 >->-, before me, the undersigne a Notary Public in and for said State, personally appear ROBERT M. CAMPBELL, personally known to me (or proved to me the basis of satisfactory evidence) to be the person w executed the within instrument and who is known to me to be partner of CAMPBELL-PALOMAR 11, a California general partne ship, which partnership is known to me to be the gener partner of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE I a California limited partnership, the limited partnership th executed the within instrument, and acknowledged to me that executed the within instrument on behalf of CAMPBELL-PALOM 11, that said partnership executed the within instrument and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE executed the same. behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE I WITNESS my hand and official seal. I_Cy -A- J /' /' 7; i ,<,L-7-/-/-+z'- - I -1; - ,cy,- c NOTARY PUBLIC < RITA L. CUii4MINGS , NOTARY P!JY?lC C;i.lcr!i NIA 1 Pii'INClPAL OFFICE IN I ,-----7 Hz"; / h ! F,? /, -2 \- ~ ' !%* I_-- ORANGE COLIN fY Name (Typed or Printed) (SEAL) BBC-CP/CPII .2 <. * ,’ I, HENRY WORLEY ASSOCIATES ClVlLENGlNEERlNG 0 SURVEYING 0 PLANNING R EC EIV ED. NOV. 5, NOV 61s CITY OF CARLSBN, D€v€LQ?. PROC, wQp& CITY OF CARLSBAD ENGl NEERI NG DEPARTMENT 1200 ELM AVE CARLSBAD, CAL. 92008 - GENTLEMEN : ON BEHALF OF MY CLIENT, BIRTCHER, I HEREBY REQUEST THAT YOU INITIATE A CONDEMNATION PROCEED1 NGS FOR STORM DRAl NAGE IMPROVEMENTS AND THE REQUl I EASEMENT IN ACCORDANCE WITH SECTION 20.16.095 OF THE CARLSBAD MUNlClPA CODE. THE DRAINAGE IMPROVEMENTS ARE REQUIRED AS A CONDITION OF THE TENTATIVE APPROVAL FOR CT 82-4/PUD-38, AND CANNOT BE COMPLETED WITHOUT AN EASEMEI FOR OFFSITE CONSTRUCTION. THE ADJACENT PROPERTY OWNER HAS REJECTED ALL FAITH EFFORTS TO ACQUIRE THE NECESSARY EASEMENT AND HAS REJECTED ALL REASONABLE OFFERS TO PURCHASE HIS PROPERTY. ATTACHED TO THIS LETTER ARE THE DOCUMENTS REQUIRED FOR YOU TO PROCEED THE CONDEMNATION PROCEEDINGS WHICH CONSIST OF: 1. A SIGNED AGREEMENT 2. A LITIGATION GUARANTEE 3, AN M.A. I . APPRAISAL 4. A PLAT E LEGAL DESCRIPTION OF THE REQUIRED EASEMENT IF ANY FURTHER INFORMATION OR DOCUMENTATION IS REQUIRED, PLEASE ADVISE IMMEDIATELY. EXHIBIT 7875 Convoy Court 0 Suite A-2 San Diego, California 921 11 0 (71 4) a e 0 ‘L HENRY WORLEV ASSOCIATES CIVILENGINEERING 0 SURVEYING PLANNING DEC. 11, JOB NO. CITY OF CARLSBAD 1200 ELM STREET CARLSBAD, CAL. 92008 ENG I NEERl NG DEPARTMENT GENTLEMEN : THE ATTACHED CORRESPONDENCE IS BEING SUBMITTED AS EVIDENCE OF A GOOD F EFFORT TO ACQUIRE THE NECESSARY RIGHT OF WAY NEEDED FOR OFFSITE DRAINA IMPROVEMENTS RELATED TO PALOMAR OAKS II, CT 82-4 AS REQUIRED BY THE PR FOR ACQUISITION OF OFF SITE IMPROVEMENTS CARLSBAD MUNICIPAL CODE SECT1 20.16.095. IT IS EVIDENT THAT MY CLIENT, BIRTCHER, HAS OFFERED TO PURCHASE THE PR FOR AN AMOUNT WHICH IS IN EXCESS OF THE MIA APPRAISED VALUE, AND HAS B UNSUCCESSFUL. WE THEREFORE HAVE NO ALTERNATIVE OTHER THAN TO ACQUIRE 1 NECESSARY RIGHT OF WAY THROUGH CONDEMNATION PROCEEDINGS. THE ATTORNEY REPRESENTING BIRTCHER IN THIS ACTION WILL BE MR. JEFF ODE OF THE FIRM OF RUTAN & TUCKER (714) 64173441, SINCERE? fi*r t!& & J$ HENRY L. ORLEY, PRESID T HENRY W RLEY ASSOCIATE INC. EXHIBIT 4 7875 Convoy Court 0 Suite A-2 cl San Diego, California 921 11 0 (71 4) 0 0 I. '1 HENRY WORLEY ASSOCIATES CIVILENGINEERING 0 SURVEYING 0 PLANNING JAN. 21 , 1 I/( MR, DAVID EDEN JL (2 7 2505 CAMINO DEL RIO SOUTH SUITE 108 D SAN DIEGO, CAL. 92108 DEAR MR. EDEN, I HAVE RELAYED TO MR. ROBERT M. CAMPBELL OF BIRTCHER PACIFIL THE RESUL OUR CONVERSATION ON FRIDAY JAN. 18th, AND HAVE OUTLINED WHAT I BELIEVE THE PRESENT POSITION WHICH YOU AND YOUR CLIENT MR. ALADRAY HAVE TAKEN RESPECT TO DEVELOPMENT OF ANY IMPROVEMENTS ON MR. ALADRAYS PROPERTY. I ADVISED MR. CAMPBELL THAT IT WAS YOUR FEELING THAT THE BEST RESOLUTION THE SITUATION WOULD BE TO PURCHASE MR. ALADRAY'S PROPERTY AND THAT, TO KNOWLEDGE, NO ONE HAD MADE A FIRM OFFER FOR MR. j2LADRAY TO CONSIDER. IN RESPONSE, MR. CAMPBELL HAS AUTHORIZED ME TO MAKE A FIRM OFFER ON YE OF BIRTCHER PACIFIC OF $60,000 TO ACQUIRE THE PARCEL OWkED BY MR. ALAC SINCE WE ARE CURRENTLY IN THE PERMIT PROCESS WITH THE CITY OF CARLSBX IS OF THE ESSENCE, AND WE WILL REQUIRE A RESPONSE TO THIS OFFER WITHIb DAYS. SI NCERELY , by? i l34 HENRY L. WORLEY, PRE'SIDENT HENRY WORLEY ASSOC I ATES , I NC. 1 1 p I I &lJ j '. :> 7875Convoy A +nc Court 0 Suite A-2 San Diego] Califo 92 e I. 11 DAVID EDEN I-y /- ATTORNEY AT LAW 2605 CAMINO DEL RIO SOU I H SUITE I08 SAN 0,EGO CALIFORNIA 92108 37e4 PHONt (619) 260 1656 ~Januarli 22, 1~65 HENRY L, N~JKLEY Henry Nor ley Associates, lnc I 7875 Convoy Court Suite "A2" San Dieyo, California 921 I1 RE: ALAI~~AY/t~!li7i_H~K - ''I\[ ibl( Dear iW, Norley: I am receipt of your coiiiiiiur\icatiOn dated Januarv 21, 1%: wnerein you informed me thdt iW RUGEi4T Pl, LAPIPHELL of B PHLIFIC has authorized you tu otkf Sixty TiiousanU Dollai ( $ 613,UOO,uO 1 for the purctidse of tile parct'l mned by I c 1 i ent MK I ALADKA'U' . I have contac d MR. ALADKAP ~d llil ot rlid IIII~I dl wr dl PIK, ALADRAY has authorized me to torwdrcl to you til5 coun offer in the! amount of One Hundred Fitty-lVlne Triousdnd Dollars ( $ lY3,OOO,X L This counter offer diil be ettectlde until Jdiiudry 28, 1 at which time if not accepted by BIRrCHER PACIFIC, in wr received in this office, it is rescinded, lhank you for your cooperation in thispatref. Ve r y 1 r II 1 y y 0 L1 r ll/\? 11) 1 1Jtiu c DE:ss 6 0 m U 't, HENRY WORLEY ASSOCIATES CIVIL ENGINEERING CI SURVEYING 0 PLANNING JAN 24, 1985 ' ' /]iE 1- MR. DAVID EDEN 2605 CAMINO DEL RIO SOUTH SUITE 108 ' SAN DIEGO, CAL. 92108 DEAR MR. EDEN, IN RESPONSE TO YOUR LETTER OF JAN. 22, 1985 IN WHICH YOU FORWARDED THE COUNTER OFFER OF YOUR CLIENT MR. ALADRAY IN THE AMOUNT OF $159,000 FOR THE PURCHASE OF HIS PROPERTY, 1 HAVE BEEN INSTRUCTED BY MY CLIENT MR. ROBERT M. CAMPBELL OF EIRTCHER PACIFIC TO PRESENT HIS COUNTER OFFER OF MR. CAMPBELL WISHES ME TO FURTHER ADVISE YOU THAT THIS IS HIS FINAL OF AND THAT NO ADDITIONAL COUNTER OFFERS WILL BE ENTERTAINED. AS PREVIOUSLY STATED, TIME IS OF THE ESSENCE AND WE WOULD APPRECIATE 'i RESPONSE NO LATER THAN JAN. 30, 1985 SO THAT WE MAY TAKE APPROPRIATE F THANK YOU FOR YOUR CONSIDERATION AND PROMPT ATTENTION TO THIS PlATTER. $90,000. SlNC RELY, HENRY &lm* L. WORLEY, PRESID NT HENRY WORLEY ASSOCI ATES , I NC. ,/? tcsp 1 I [J pQ e". 1 , *t . ., \a I 1% ',,, ,:$ -+-;{,a 1 7q75 ,convoy court I, I) , 1 r 0 e 9 ** ,*I I 9 DAVID k_UEl\i < 6 1 ATTOHNL Y nr LAW cLO5 LAhIINO DkL HI0 BOLiTi SUITE 1OL; LAP. UICGO CA~~kCl~lllf, ydlOc /I . PHOY'lt (619, 1tO It3F Jdnuar 1' L5, lY3L, HEW L, WUHLt'f /875 Convay Lourt Suite A-2 San Ui?yo, Cai irurnid 321 I 1 Ht'nry WOfi?Y kSSOCldle5, IIIC. RE : ALAU kA'7 / b 1 ii I CH t K _-____ tJ AL 1 k 1 L Dear Pir, workyy: I ain in recwt ut gi,ur lett8 11 1 '~Jl'JJ3' ?L I A)LJ I I nave contacizd YIK, HLHUHAY diiii iriToi 1 i'll'i d1 lLJii' d"?' iLiti. HLADKAY atter due deliDeratii,il t1-1~ :iclttixiied 112 t:, tor to jocl nis FliUkL WijltRUtFtK ii? tiw i~ioiiiit OI !ili l timih ~1 t ive lllousdncl LiOl lar s t b 'I 49, kid0 .dii i I He rurtiilsr intorins iie tnat tnis countzrdttzr dl ~12 \:Ttisct until January 30, I%, at whici1 tiin2 ir not dccclkitzg UY bI PAilFlC in writmg rtceived in tiiis otfic?, it is resc,lriilzd unce again, tnanK you tor your coowrdtioll iri ti113 liidtt2r8 'v'er) truly ydu13, -I i 'C . I, _I IN\/ 1 D k lJk\i 0 uE : ss CC: AL ALAiIKAY OQ