HomeMy WebLinkAbout1991-02-19; City Council; 11038; City of Carlsbad v Sherman Alta Mira Park Condemnation- . Clr-y OF CARLSBAD - AGENr-‘BILL J”ii;? @
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MTQ* 2/19/91
DEPT. CA I
CITY OF CARLSBAD V. SHERMAN (ALTA MIRA PARK CONDEMNATION)
RECOMMENDED ACTION:
That the City Council adopt Resolution No. , approving a q/-6/ stipulated judgement in Citv of Carlsbad v. Sherman and appropriating $2,551,324.
ITEM EXPLANATION
The Citv of Carlsbad v. Joseph Sherman is a condemnation action for the acquisition of the 30 acre Alta Mira community park. The statutorily required pre-trial exchange of valuation resulted in a final demand from the property owner that was substantially the same as the City's updated appraisal. This office and special condemnation counsel, Mr. Reagy, have agreed that fair compensation for the property is the sum of $5,250,000 or $175,000 per acre. The sum of $2,695,000 has previously been deposited by the City and withdrawn by Mr. Sherman. Taxes in the amount of $3,676 will also be deducted resulting in an additional net payment of $2,551,324. Information on the availability of the necessary funds and the required fund transfer furnished by the City Manager and the Financial Management Director is set out below in the fiscal impact and incorporated in the attached Resolution No. q/-t/ which will approve the stipulated judgment and appropriate the necessary funds. If the City Council wishes to complete the acquisition for the park special counsel, this office and the City Manager join in a recommendation to approve the stipulated judgment.
FISCAL IMPACT
The funding for the initial acquisiti:n of Alta Mira Park will come from a combination of sources as shown below:
SOURCE OF FUNDS Original project funding Park-In-Lieu Funds Southwest Quadrant Letter of Credit - Sammis Property Loan from Public Facilities Funds to Park-In-Lieu Total Source of Funds
1.3 million 1.0 million
0.5 million 2.8 million
USE OF FUNDS Deposit with the Court Funding for other expenses Total Use of Funds
2.7 million O.lmillion 2.8 million
According to the final settlement agreement, the City will pay $5.25 million for the property. The total cost of the acquisition will be funded through the use of the original $2.7 million deposited with the court plus an additional loan of funds from the general fund reserve for capital projects to the Park-In-Lieu Fund
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City v. Sherman Agenda Bill Paae Two
- Southwest Quadrant in the amount of $2.55 million. The action before the Council will authorize the loan of funds and appropriate these funds to the park acquisition account.
The general fund includes a special reserve fund which was established to handle costs of this nature. This account has a current balance of $4 million which will be reduced to $1.45 million after this loan. This reserve is over and above the Council's budgeted contingency account and the unappropriated reserves within the general fund.
In a future action, Council will establish the Park-In-Lieu fee for this quadrant at an amount equal to $175,000 per acre based on the value of this acquisition.
@XHIBITS
Resolution No. 9/-L/ Stipulation for Judgment Stipulated Judgment
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RESOLUTION NO. 91-61 I
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING A STIPULATED JUDGMENT IN THE CASE CITY OF CARLSBAD V. SHERMAN AND APPROPRIATING $2,551,324 TO COMPLETE THE ACQUISITION OF THE ALTA MIRA COMMUNITY PARE.
WHEREAS, the City Attorney, special condemnation counsel/
and the City Manager join in recommending that the City Council
complete the acquisition of the Alta Mira Community Park bl
approving a stipulated judgment to resolve the condemnation actior
of City of Carlsbad v. Sherman,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Carlsbad, California, as follows:
1. That the above recitations is true and correct.
2. That the Stipulation for Judgment and Stipulatel
Judgment in the case Citv of Carlsbad v. Josenh Sherman, Case No.
200405 is attached as Exhibits A and B, respectively, and made z
part hereto are approved.
3. That the City Council authorizes the expenditure of
$2,551,324 to fund said judgment as follows:
The amount of $2,550,000 shall be loaned to the Park-In-
Lieu - Southwest Quadrant from the General Fund Unreserved Funi
Balance - Designated for Approved Capital Projects, and this amount
shall be appropriated to account no. 330-840-1823-3295 to support
this acquisition.
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A
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the
City Council of the City of Carlsbad on the 19th day of February
1991, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Larson, Nygaard and
Stanton
NOES : None
ABSENT: None
l32WIS, Mayor
ATTEST:
KAREN R. KUNDTZ, Assistant City Clerk (SEAL)
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VINCENT F. BIONDO, JR.
CITY ATTORNEY
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Cartsbad, CA 92008
ROSCOE D. KEAGY, ESQ., SPECIAL COUNSEL
~ RICHARD R. FREELAND, ESQ.
ASARO & KEAGY
3170 Fourth Avenue 4th Floor
San Diego, CA 92103
(619) 297-3170
DANIEL S. HENTSCHKE
BROWN & DIVEN
12770 Highbluff Drive, Suite 240
San Diego, CA 92130
Attorneys for Plaintiff CITY OF CARLSBAD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
CITY OF CARLSBAD, Municipal Corporation,
Plaintiff,
V.
JOSEPH SHERMAN, and DOES 1 through 50, Inclusive, and All Persons Unknown Claiming an Interest in the Property Described
in the Complaint.
Defendants.
NO. 200405
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STIPULATION FOR JUDGMENT
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IT IS HEREBY STIPULATED by Plaintiff CITY OF CARLSBAD, through
its attorneys of record, VINCENT F. BIONDO, City Attorney and ASARO
& KEAGY, Special Counsel, by ROSCOE D. REAGY, and Defendant JOSEPH
SHERMAN, through his attorney, DRAPER & PHERSON, by DOUG DRAPER,
as follows:
Resolution No.
JUDGE: SHERMANSTP (02019l/Cr45.02) l!xuBIlr
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1. That the Stipulated Judgment attached hereto as Exhibit
II A II and incorporated herein by this reference, shall be entered
forthwith.
2. That Defendant JOSEPH SHERMAN hereby waives trial, the
right to trial, hearing on the issues, the making and filing of a
Statement of Decision, Notice of Entry of Judgment, Notice of
Recording Final Order of Condemnation, and the right to move for
new trial or appeal.
Dated:
Dated F4 e 4H&?!q y Hi?/
JUDGE: SHERMAN.SlP (020191/C145.02) 2
VINCENT F. BIONDO, JR.
City Attorney
ASARO & KEAGY, Special Counsel
By: Roscoe D. Keagy Attorneys for Plaintiff CITY OF CARLSBAD
DRAPER & PHERSON
By: DouS Dr-per /
Attorney WDefendant JOSEPH SHERMAN
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SUPERIOR COURT OF THE STATE OF CALiFORNlA
FOR THE COUNTY Of RIVERSIDE
CITY OF CARLSBAD, a Municipal Corporation,
Plaintiff,
V.
JOSEPH SHERMAN, and DOES 1 through 50, Inclusive, and All
Persons Unknown Claiming an
Interest in the Property Described
in the Complaint.
Defendants.
NO. 200405
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,' STIPULATED JUDGMENT
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It appearing to the Court that Plaintiff CITY OF CARLSBAD,
through its attorneys of record, VINCENT F. BIONDO, City Attorney,
and ASARO & KEAGY, Special Counsel, by ROSCOE D. KEAGY, and
Defendant JOSEPH SHERMAN, through his attorney, DRAPER & PHERSON,
by DOUG DRAPER, have stipulated that the Stipulated Judgment as
hereinafter set forth may be entered; it further appearing that
taxes are due and owing to the COUNTY OF SAN DIEGO on the subject
property to the date of possession; it further appearing that
JUDGE: SHEFWNJDG (020191 :cnv/C14!5.02) /I /\ ?I c-xH\BlT ./“? “““‘““““&,~~
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Defendant ABA RECOVERY SERVICE, INC. has been defaulted; and it
further appearing to be a proper case therefor;
IT IS ORDERED, ADJUDGED AND DECREED:
1. That Plaintiff seeks to take, acquire and condemn the
1 rights, title and interest in real property as described in the I
Resolution of Necessity shown as Exhibit t, A II to Plaintiff's
Complaint, to which reference is hereby made and by this reference,
said descriptions are made a part hereof as if fully set forth;
2. That the condemnation and taking thereof is for the public
purposes set forth in the Complaint herein and necessary for such
public use.
3. That the payment to Defendant JOSEPH SHERMAN in the sum
of $5,250,000.00, less the sum of $2,695,000.00 heretofore withdrawn
by Defendant, and less the sum of $3,676.00 for taxes due and owing
to the COUNTY OF SAN DIEGO to and including March 1, 1991, for a
net payment of $2,551,324.00 to Defendant JOSEPH SHERMAN, shall
constitute full and final payment for the condemnation and taking
of said real property and interests in real property, and
extinguishes all Defendant's claims which could have been made in
this action, including, but not limited to, interest, fees, costs,
litigation expenses, precondemnation damages, or other damages; if
payment as specified herein is not made on or before March 1, 1991,
simple interest on the sums due will be due Defendant at the rate
of 10% per annum thereafter;
4. That said payment as hereinabove specified shall
terminate, cancel, and extinguish all liens, leaseholds, and
encumbrances of whatsoever nature on said real property.
JUDGE: SHERMAN.JDG (020191:cm/C145.02)
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED:
5. That said total sum of $2,551,324.00 be distributed
to Defendant JOSEPH SHERMAN, in care of his attorney, DOUG DRAPER,
Esq., DRAPER & PHERSON, 3435 Wilshire, #2925, Los Angeles, CA
90010; if payment as specified herein is not made on or before March
1, 1991, simple interest on the sums due will be due Defendant at
the rate of 10% per annum thereafter;
6. That the State Treasurer is herein authorized to issue
a warrant to Plaintiff CITY OF CARLSBAD for the principal sum
remaining on deposit, plus all accrued interest, if any.
7. That ABA RECOVERY SERVICE, INC., having been served with
the summons and complaint in eminent domain and having failed to
appear, has been defaulted;
8. That Plaintiff seeks to take, acquire, condemn and own
the interests in said real property referred to and described
herein;
9. That from either the date of possession of the real
property and real property interests taken by Plaintiff, or the date
of transfer of title of the real property and real property
interests from Defendant JOSEPH SHERMAN to Plaintiff, whichever
occurs first, all taxes, penalties, costs, liens, leaseholds, and
encumbrances of whatsoever nature which are a lien on said parcel
and which are apportioned to that portion of the fiscal year after
said recording date, are hereby canceled pursuant to sections 5081
et seq. of the Revenue and Taxation Code.
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JUDGE: SHERMAN.JDG (020191:crw/C145.02)
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10. That trial, the right to trial, hearing on the issues,
the making and filing of a Statement of Decision, the right to move
for a new trial or appeal, Findings of Fact, Conclusions of Law,
Notice of Entry of Judgment and Notice of Recording Final Order of
Condemnation are waived, and that upon payment to Defendant as
herein specified, that Plaintiff shall be entitled to a Final Order
of Condemnation.
11. Upon receipt of the funds, Defendant JOSEPH SHERMAN will
forthwith forward to Plaintiff's counsel a Satisfaction of Judgment
which Plaintiff will file with the court.
Dated:
Judge of the Superior Court
JUDGE: SHERMAN.JDQ (CQ0191 :crw/C145.@)
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FE5 8 1991
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
CITY OF CARLSBAD, a
Municipal Corporation,
Plaintiff,
V.
JOSEPH SHERMAN, and DOES 1
through 50, Inclusive, and All
Persons Unknown Claiming an Interest in the Property Described in the Complaint.
Defendants.
NO. 200405
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; STIPULATED JUDGMENT
; 1
It appearing to the Court that Plaintiff CITY OF CARLSBAD,
through its attorneys of record, VINCENT F. BIONDO, City Attorney,
and ASARO & KEAGY, Special Counsel, by ROSCOE D. KEAGY, and
Defendant JOSEPH SHERMAN, through his attorney, DRAPER & PHERSON,.
by DOUG DRAPER, have stipulated that the Stipulated Judgment as
hereinafter set forth may be entered; it further appearing that
taxes are due and owing to the COUNTY OF SAN DIEGO on the subject
property to the date of possession; it further appearing that
JUDQE: SHERMAN.JDG (OM891 :ctw/C145.02)
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Defendant ABA RECOVERY SERVICE, INC. has been defaulted; and it
further appearing to be a proper case therefor;
IT IS ORDERED, ADJUDGED AND DECREED:
1. That Plaintiff seeks to take, acquire and condemn the
rights, title and interest in real property as described in the
Resolution of Necessity shown as Exhibit "A" to Plaintiff's
Complaint, to which reference is hereby made and by this reference,
said descriptions are made a part hereof as if fully set forth;
2. That the condemnation and taking thereof is for the public
purposes set forth in the Complaint herein and necessary for such
public use.
3. That the payment to Defendant JOSEPH SHERMAN in the sum
of $5,250,000.00, less the sum of $2,695,000.00 heretofore withdrawn
by Defendant, and less the sum of $3,676.00 for taxes due and owing
to the COUNTY OF SAN DIEGO to and including March 1, 1991, for a
net payment of $2,551,324.00 to Defendant JOSEPH SHERMAN, shall
constitute full and final payment for the condemnation and taking
of said real property and interests in real property, and
extinguishes all Defendant's claims which could have been made in
this action, including, but not limited to, interest, fees, costs,
litigation expenses, precondemnation damages, or other damages; if
payment as specified herein is not made on or before March 1, 1991,
simple interest on the sums due will be due Defendant at the rate
of 10% per annum thereafter;
4. That said payment as hereinabove specified shall
terminate, cancel, and extinguish all liens, leaseholds, and
encumbrances of whatsoever nature on said real property.
JUOGE: SHERMAN.JM3 (020@1:cn~~/C145.02)
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED:
5. That said total sum of $2,551,324.00 be distributed
to Defendant JOSEPH SHERMAN, in care of his attorney, DOUG DRAPER,
Esq., DRAPER & PHERSON, 3435 Wilshire, #2925, Los Angeles, CA
90010; if payment as specified herein is not made on or before March
1, 1991, simple interest on the sums due will be due Defendant at
the rate of 10% per annum thereafter;
6. That the State Treasurer is herein authorized to issue
a warrant to Plaintiff CITY OF CARLSBAD for the principal sum
remaining on deposit, plus all accrued interest, if any.
7. That ABA RECOVERY SERVICE, INC., having been served with
the summons and complaint in eminent domain and having failed to
appear, has been defaulted;
8. That Plaintiff seeks to take, acquire, condemn and own
the interests in said real property referred to and described
herein;
9. That from either the date of possession of the real
property and real property interests taken by Plaintiff, or the date
of transfer of title of the real property and real property
interests from Defendant JOSEPH SHERMAN to Plaintiff, whichever
occurs first, all taxes, penalties, costs, liens, leaseholds, and
encumbrances of whatsoever nature which are a lien on said parcel
and which are apportioned to that portion of the fiscal year after
said recording date, are hereby canceled pursuant to sections 5081
et seq. of the Revenue and Taxation Code.
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JUDGE: SHERhtAN.JOQ (020891 :crw/C14!5.02)
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10. That trial, the right to trial, hearing on the issues,
the making and filing of a Statement of Decision, the right to move
for a new trial or appeal, Findings of Fact, Conclusions of Law,
Notice of Entry of Judgment and Notice of Recording Final Order of
Condemnation are waived, and that upon payment to Defendant as
herein specified, that Plaintiff shall be entitled to a Final Order
of Condemnation.
11. Upon receipt of the funds, Defendant JOSEPH SHERMAN will
forthwith forward to Plaintiff's counsel a Satisfaction of Judgment
which Plaintiff will file with the court.
Dated:
E. Michael Kaker, Judge
Judge of the Superior Court
I JWmmt ~cdr 5V+,:=
JUWE: SHERMAN.JW (02OW :cm/C145.Q2)
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VINCENT F. BIONDO, JR.
CITY AlTORNEY
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
ROSCOE 0. KEAGY, ESQ., SPECIAL COUNSEL
RICHARD R. FREELAND, ESQ. FE5 8 7991
ASARO & KEAGY
3170 Fourth Avenue 4th Floor
San Diego, CA 92103
(619) 297-3170
DANIEL S. HENTSCHKE
BROWN & DIVEN
12770 Highbluff Drive, Suite 240
San Diego, CA 92130
Attorneys for Plaintiff CITY OF CARLSBAD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF RIVERSIDE
CITY OF CARLSBAD, Municipal Corporation, NO. 200405
Plaintiff,
V.
; ) STIPULATION FOR
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JUDGMENT
JOSEPH SHERMAN, and DOES 1 through 50, Inclusive, and All ; Persons Unknown Claiming an Interest in the Property Described ; in the Complaint.
; Defendants. 1 1
IT IS HEREBY STIPULATED by Plaintiff CITY OF CARLSBAD, through
its attorneys of record, VINCENT F. BIONDO, City Attorney and ASARO
k KEAGY, Special Counsel, by ROSCOE D. KEAGY, and Defendant JOSEPH
SHERMAN, through his attorney, DRAPER & PHERSON, by DOUG DRAPER,
LS follows:
UDGE: SHERMAN.SlP (020191/C145.02)
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1. That the Stipulated Judgment attached hereto as Exhibit
"A" and incorporated herein by this reference, shall be entered
forthwith.
2. That Defendant JOSEPH SHERMAN hereby waives trial, the
right to trial, hearing on the issues, the making and filing of a
Statement of Decision, Notice of Entry of Judgment, Notice of
Recording Final Order of Condemnation, and the right to move for a
new trial or appeal.
Dated:
Dated:
IUDOE: SHERMANSTP (02Ql9llC14S.oz) 2
VINCENT F. BIONDO, JR. City Attorney
ASARO & HEAGY, Special Counsel
By:
Attorneys for Plaintiqf- CITY OF CARLSBAD
DRAPER & PHERSON
By: DoudDrbper / Attorney k&Defendant JOSEPH SHERMAN
A.
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SUPERIOR COURT OF THE STATE OF CALfFORNlA
FOR THE COUNTY OF RIVERSIDE
CITY OF CARLSBAD, a Municipal Corporation,
Plaintiff,
V.
JOSEPH SHERMAN, and DOES 1 through 50, Inclusive, and All Persons Unknown Claiming an Interest in the Property Described in the Complaint.
NO. 200405
!
; STIPULATED JUDGMENT
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Defendants.
It appearing to the Court that Plaintiff CITY OF CARLSBAD,
through Its attorneys of record, VINCENT F. BIONDO, City Attorney,
and ASARO & KEAGY, Special Counsel, by ROSCOE D. KEAGY, and
Defendant JOSEPH SHERMAN, through his attorney, DRAPER & PHERSON,
by DOUG DRAPER, have stipulated that the Stipulated Judgment as
hereinafter set forth may be entered; it further appearing that
taxes are due and owing to the COUNTY OF SAN DIEGO on the subject
property to the date of possession; it further appearing that
JUOGE: SHERMMLJOQ (020191 :cmdC14S.O2)
WBIT~
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Defendant ABA RECOVERY SERVICE, INC. has been defaulted; and it
further appearing to be a proper case therefor;
IT IS ORDERED, ADJUDGED AND DECREED:
1. That Plaintiff seeks to take, acquire and condemn the
rights, title and interest in real property as described in the
Resolution of Necessity shown as Exhibit "A" to Plaintiff's
Complaint, to which reference is hereby made and by this reference,
said descriptions are made a part hereof as if fully set forth;
2. That the condemnation and taking thereof is for the public
purposes set forth in the Complaint herein and necessary for such
public use.
3. That the payment to Defendant JOSEPH SHERMAN in the sum
of $5,250,000.00, less the sum of $2,695,000.00 heretofore withdrawn
by Defendant, and less the sum of $3,676.00 for taxes due and owing
to the COUNTY OF SAN DIEGO to and including March 1, 1991, for a
net payment of $2,551,324.00 to Defendant JOSEPH SHERMAN, shall
constitute full and final payment for the condemnation and taking
of said real property and interests in real property, and
extinguishes all Defendant's claims which could have been made in
this action, including, but not limited to, interest, fees, costs,
litigation expenses, precondemnation damages, or other damages; if
payment as specified herein is not made on or before March 1, 1991,
simple interest on the sums due will be due Defendant at the rate
of 10% per annum thereafter;
4. That said payment as hereinabove specified shall
terminate, cancel, and extinguish all liens, leaseholds, and
encumbrances of whatsoever nature on said real property.
JUDGE: SHERMAN.JOG (020191:c1w/C145.02)
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED:
5. That said total sum of $2,551,324.00 be distributed
to Defendant JOSEPH SHERMAN, in care of his attorney, DOUG DRAPER,
Esq., DRAPER & PHERSON, 3435 Wilshire, #2925, Los Angeles, CA
90010; if payment as specified herein is not made on or before March
1, 1991, simple interest on the sums due will be due Defendant at
the rate of 10% per annum thereafter;
6. That the State Treasurer is herein authorized to issue
a warrant to Plaintiff CITY OF CARLSBAD for the principal sum
remaining on deposit, plus all accrued interest, if any.
7. That ABA RECOVERY SERVICE, INC., having been served with
the summons and complaint in eminent-domain and having failed to
appear, has been defaulted;
8. That Plaintiff seeks to take, acquire, condemn and own
the interests in said real property referred to and described
herein;
9. That from either the date of possession of the real
property and real property interests taken by Plaintiff, a'r the date
of transfer of title of the real property and real property
interests from Defendant JOSEPH SHERMAN to Plaintiff, whichever
occurs first, all taxes, penalties, costs, liens, leaseholds, and
encumbrances of whatsoever nature which are a lien on said parcel
and which are apportioned to that portion of the fiscal year after
said recording date, are hereby canceled pursuant to sections 5081
et seq. of the Revenue and Taxation Code.
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JUDGE: SHERMAN.JDO (020191:01w/C145.02)
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10. That trial, the right to trial, hearing on the issues,
the making and filing of a Statement of Decision, the right to move
for a new trial or appeal, Findings of Fact, Conclusions of Law,
Notice of Entry of Judgment and Notice of Recording Final Order of
Condemnation are waived, and that upon payment to Defendant as
herein specified, that Plaintiff shall be entitled to a Final Order
of Condemnation.
11. Upon receipt of the funds, Defendant JOSEPH SHERMAN will
forthwith forward to Plaintiff's counsel a Satisfaction of Judgment
which Plaintiff will file with the court.
Dated:
Judge of the Superior Court
JUDOE: SHERMAN.JDQ (020191:cn&l45.02)
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