HomeMy WebLinkAbout1996-07-16; City Council; 13738; SETTLEMENT OF LAWSUIT ENTITLED CITY V. WIEGAND PROPERTIES, CASE NO. 071050m m Y' CITY OF CARLSBAD -AGENDA BILL
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AB# /$, 938- DEPT. HD. TITLE:
MTG. 711 6/96 SETTLEMENT OF LAWSUIT ENTITLED CITY V. WIECAND
PROPERTIES, CASE NO. 071050
DEPT. CA
CITY AlW
CITY MGR.
RECOMMENDED ACTION:
If council concurs, your action is to approve Resolution No. qh-25Ll which authorii
through it counsel, to stipulate to judgment in the case City v. Wieaand.
ITEM EXPLANATION:
This is a condemnation action to secure acquisition of property for a desiltation basin a
Olivenhain Road widening project. This case was settled before the Honorable Lis;
judge of the superior court. At that time a settlement was entered and the parties s
judgment, subject to City Council approval, to acquire the necessary easement for
$70,000. Both the City Engineer and the City Attorney recommend that the Council a
entry of a stipulated judgment in accordance with the stipulation for judgment attac
agenda bi I I.
FISCAL IMPACT:
$70,182 from the project account.
EXH I BITS:
1. Resolution No. 94 Fd5 '/
2. Stipulation for Judgment on file in the City Attorney' s Office.
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RESOLUTION NO. 960254
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING A STiPUlATED JUDGMENT IN THE CASE CITY OF CARLSBAD V. WIEGAND PROPERTIES AND APPROPRIATING $70,000
TO COMPLETE THE OLIVENHAIN ROAD WIDENING
PROJECT FOR ACQUISITION OF A DESILTATION BASIN.
WHEREAS, the City Attorney, special condemnation counsel and tt
Manager join in recommending that the City Council complete the acquisi'
desiltation basin by approving a stipulated judgment to resolve the condemnation
of City of Carlsbad v. Sherman,
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
Carlsbad, California, as follows:
1. That the above recitations is true and correct.
2. That the Stipulation for Judgment and Stipulated Judgment in tt
Citv of Carlsbad v. Wieaand ProPerties, Case No,N071050 is attached as Exhibit:
B, respectively, and made a part hereto are approved.
3. That the City Council authorizes the expenditure of $70,182 to fi
judgment as set forth in the Stipulated Judgment (Exhibit 8) and which includes
estimated filing fees.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
Council of the City of Carlsbad on the 16th day of JULY 1996, by the f
vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, E
NOES: None
ABSENT: None
ATTEST:
hf&z? Q&., ALETHA L. RAUTENKRANZ, City Cljbrk
(SEAL)
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! ~~D R BALL, Gty AUgw I
CllY OF CARLSBAD I 1 R-FU 61- 1200 Carisbad Village Drive I
Carlabad, CA 920084988 : c
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ASARO, KEAGY, FREECANO & MCKINdm, Special CaunW eM By: ROSCOE 0. KEAGY, State Bar No. 32541 c?A By: RlCHARO R. FREELAND, State Ba No. 64092 cc Fourth floor, 3170 fourth Avenue 1
Son Dfmgo, CA 92103 I
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Attorneys for Plaintiff CrrY OF CARLSBk
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(6 19) 297-31 70 i ,
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~ SUPtRlOR COURT @f ME STATE OF CAUFORNW
FOR THE dOUNTY OF SAN DIEGO
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i CITY OF CARLSBAD, i) NO. N 77odQ
A Munidpal Corporation, i)
i 1' FfainwT, :)
V. !I i) STIPULATION FOR JUDGMENT
ij WlEGAND PROPERTIES i)
PARTNERSH1P. a Csafamia I) General Partnership; !I MISSION VALLEY ESCROW, a il
California Corpoatton; t) BANK OF COMMWCE CUSTOOW 1 ) FBO JEROME GARNER IW 1)
MARQUERITE MILLER; :) JAMES MEGANO; 1) and, DOES 1 Through 50, I)
Indushre, i) i)
Mendank. 1,
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IT IS HEREBY STIPULATED byj PlaM CllY OF CARISBAD. through its attor
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record, RONALD R. BAL Cfty Attorney, +d ASARO, KEAGY, FFEELAND (L MCKINLEY,
Counsel. by RICHARD R FREELAND, and by Defendant WlEGAND PROPERTIES
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.f : I PARTNERSHIP, a California General P4msrsnip, throw its attorneys of tecod, ROW
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L PAUL, as follows: i
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1. That JUdgrnd in tfis withimaction may be enbered h the wm and cantaini
terms and anditions of the attached braposed judgment marked Exhibit "A" and I
reference made a part of *this stipulatiani and that fees. costs, litigation expenses, intere
precondemnatlan damages or atnet da4ages am waived. i
2. That befendant MEGAN0 4ROPERTlES PARTNERSHIP, a Caliimia C
Partnership, hereby waives trial, the righi to M. hearing on the issues, the making and
a Statement of Deddon, Notice of Enky of Judgment, Nodm of Recording Fmal 0
Condemnation, and the right to move folf a new triisi or appeai.
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Dated: i ASARO, KEAGY, FREUAND & MCKINLE' ! Special Counsel !
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i Aitomeys for Plaintin n i RICHARD R. FREELAND
Dated: 7//, /9 G f "--= I 1 - I1
I RONALD U PAUL i j Attorney f~r ~6-d i WEGAND PROPERTlES PARTNERS1 i Califomfa General Partnedip t
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SUPERIOR COU4 OF THE STATeQF WMm
KIR THE bOUKn OF SAN DEGO
CITY OF CARLSBAD, 1) NO. M 740csO A Munidpd Corporation. i)
il plaintiff, :)
I) snpuum JUDGMENT v. !I i) \MEGAN0 PROPERTIES il
PARTN€RSHiP, a CaiRbrnia . ;I
GW Pmmhip: I) MWON VAUEY ESCROW, a i) CaRr;ornia Corporation: BCWK OF COMMERCE CUSTOO(AN I 1 il
FBO .l€F&OME GARNER IAA: i) MARGUERlTE MI- i)
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JAMES WIEOAND; I,
and. DOES 1 Thrargh SO, 1) Induahn, !I
f) Ddendarlk .! 1 !*)
It ”iIg to th8 COUR that pbhtiff Cl7Y OF CARLSW, through its &O
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~RO~RBAYCI~YA~~~B~.~ASARO,KU\GY,FREE~ANO&WCKINLEI,
Counsel, byRICHARORFREBAND, akdefendntWlEGANDPROPERnESPARTNE
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~ a warnfa Ga-1 -Hip, mmt& h attamys 8f recMd, Row N. PAu’
~ i ’ Stiputahrrd that Judgment as hereinafte$ set fa& may bet entered; that dehw id
VAmESCWNV, a”hiPCarpa~n. 6ANKOFCOMMERCECUSTOOlAN FBO JI
GARNER IRA, NAKGUERE wum, JPMEs MEWD, DANIEL H. WIEOANQ, rw
! Daniel H. Wegand Trust dated 1~?9/8g~ as mended, ana me FRANCHIS€ TAX BOAR
filed diachimers; and it further appearin6 to be a proper case thetefor;
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IT Is ORDERED, ADJUDGEU kN0 DECREED:
1, That PlH sdcs ta tab, am and Condemn the righa. titte and iWfe
pmparty as describtd and dw In LWtm1‘ to ~raintifps Complaint, to Mictr dc
hereby made and by this reihnte, said~cksdptions am made 8 paR hemof aS if hflY
2 mat the candemnatian and taking thereof le fsr t)re publk purp- set fa
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Complaint and is necesoary for such puei usx
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i 3, Thatthepaym#lttodefwldaritWI€OAND PROPERTiES PARTNERSMP, a (
God Partnership. in the sum uf$7O,$lO.C4. kt& tdng o?he ma! property dd in
w property, shall canstttude cw and & payment ttw the conctemnatlan ~d ag ~f
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property and hterests in =ai pro&, @ extinguishes aP detbndants’ clai?m which Q
been made In this action, indudfng, but nbt limited to compemathn Ibr improvcmant3, d
damages, interest, feos, ax&, litigatron pnses, pmcmdemnatlon damages, other 4
and all d&miants daims dating to th’s action;
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4 nrat said payment as -+om speaifi~d s~ terminate, can~el, a~d f
all 11- l8aSehoW and naunlxancgs~ofwhatsaever nature on sz# real property;
& That defendants MlSSlON $ALLEY ESCROW, a catilbmhr COrpdratian.
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COMMERCE CUSTOOlAN -0 JERdMC WWR 1- “3- PAklSF
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WIEWP, omfa H, WIEGAND, TA of t)re oarrid H. wegand T- ateu 111 i
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i am#lldad, and the FRANCHISE TAX BqARD. med dssdaimers and having mtd &&jm
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j de- - not med @ any WfIldensatbtl MdR;
lT IS FURTHER ORDUZD, L&UDGED AND DECREED: i 8. That saki total sum of $7CJ,@W.Otl be distributed as follows:
a The County Tre*um is herein authafized to issue a warranf ta d
WE- PROPERTIES PtW'FEf?S~IP. a Califcrmie Genemi Partnership, for said tot
$56,400.00 In cam of its attamey, RC3NkI.O N PAUL;
b. PlaintiR CTp( dF CARLSSAD ittare it chedc to defendant VI
PROP€RE3 PARTNERSHIP, a Cafrfobia Genemi Partnership, in ths'arrtaunt of $1 3,4
am afm attorney, RUMLO N. PAUG
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c, m8 county ~t&urw i~ hemin autnom to issue a wanant t
far me bahnce dttm pnrcipai sum pe~usly deposited vrrith the Couit, if any. PIUS ai
intenst to the date af the withdrawals; I
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7. That Plaintiff seek3 b We. actwin$, wndemn and own the interests in i
pfupaly rehmel to anddescrlbd hen& 1
8. That Possssjiwr having be4 bken by PlaintMan May 31 . 1898, ail tams,
costs, liens, leaseholds, and encumb- afwftatsuever nature which am a ri on s
and which am apportianed to that port& of the fiscal year aftur said date am hereby
puswant b sections 5081 et ssq. of th6 &venue and Taxdon Me;
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9. Thdhf?l, the right to Mal, h&rtng OR theissuw. the making and fiIing 00 a
otlbrirtim~erfghtto~fara~~~orappeal,NoticeofEntry~Jucrgmenr~
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of~nnalOrdsrotCa~a~~~andttrat~onpayrrwntto~i
~ hd spcrdi8ed, M PtaintiR dad b b to a Fd otder ot "emnati6n.
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i i Judge of the Superior' Cowt
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: C-.jd8ctalTwm +em) 3 3 TOT% f
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RONALD R. BALL
CITY ATTORNEY
D. RICHARD RUDOLF
ASSISTANT CITY ATTORNEY
JANE MOBALDI
DEPUTY CITY ATTORNEY
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CALIFORNIA 92008-1989
(61 9) 434-2891
FAX: (61 9) 434-8367
Q
July 25, 1996 ’
Richard Freeland, Esq.
Asaro, Keagy, Freeland & McKinley
Fourth Floor
3170 Fourth Avenue
San Diego, California 921 03
RE: CITY V. WIEGAND
Dear Mr. Freeland:
Thank you for your letter of July 23, 1996 enclosing endorsed filed copies of the
Stipulation for Judgment and Stipulated Judgment filed by the court on July 22, 1996.
am sending copies of this to the City Clerk for her files, and my request to Finance to
issue a check in the sum of $13,600 made payable to WIEGAND PROPERTIES
PARTNERSHIP to satisfy the terms of this judgment as you have requested.
Should you have any questions regarding the above, please do not hesitate to contac
me.
Ve truly yours
LR.k
RONALD R. BALL
City Attorney
rm h
c: City Clerk J
City Engineer
Finance Department
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RONALD R. BALL, City Attorney
CITY OF CARLS-BAD
1200 Cartsbad Village Drive
Carlsbad, CA 92008-1 989 !!Lg
ASARO, KEAGY, FREELAND & MCKINLEY, Special Counsel
By: ROSCOE 0. KEAGY, State Bar No. 32541 JUL 2 2 1996
By: RICHARD R. FREELAND, State Bar No. 64092
Fourth Floor, 3170 Fourth Avenue BY: M. PEABODY, 01
San Diego, CA 92103
F KENNETH E. MARTON1 Clerk of the SuDerlor co
(6 1 9) 297-3 1 70
Attorneys for Plaintiff GIN OF CARLSBAD
SUPERlOR COURT OF THE STATE OF CALlFORNlA
FOR THE COUNTY OF SAN DIEGO
CITY OF CARLSEAD,
A Municipal Corporation,
Plaintiff,
V.
WIEGAND PROPfERTIES
PARTNERSHIP, a California
General Partnership;
MISSION VALLEY ESCROW, a.
California Corporation;
BANK OF COMMERCE CUSTODIAN
FBO JEROME GARNER IRA;
MARGUERITE MILLER;
JAMES WIEGAND;
and, DOES. 1 Through 50,
Inclusive,
Defendants.
1 NO. N 71050 1 1 1 1 STlPUtATION FOR JUOGME 1 1 1 1 1 1 1
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IT IS HEREBY STIPULATED by Plaintiff CIN OF CARLSBAD, through il
record, RONALD R. BALL, City Attorney, and ASARO, KWGY, FREELANO & MCKIl
Counsel, by RICHARD R. FREELAND, and by Defendant WIEGAND PROPERTI
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PARTNERSHIP, a California General Partnership, through its attorneys of record,
PAUL, as follows:
1. That Judgment in the within action may be entered in the sum and c
terms and conditions of the attached proposed judgment Marked Exhibit "A"
reference made a part of this stipulation; and that fees, costs, litigation expenses
precondemnation damages or other damages are waived.
2. That Defendant WIEGANO PROPERTlES PARTNERSHIP, a Caiifo
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Condemnation, and the right to move for a new trial or appeal. 11
a. Statement of Decision, Notice of Entry of Judgment, Notice of Recording F 10
Partnership, hereby waives trial, the right to trial, hearing on the issues, the rnakinl
-, 3 I Dated: 7/7/76
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Dated: 7 if, I? G
ASARO, KEAGY, FREELANO & MCI
Special Counsel
By: @ _Qn. -gL
RICHARD R. FREELANO
Attorneys for Plaintiff n
RONALD N. PAUL !'
Attorney for Defendant'
WIEGAND PROPERTIES PARTP
California General Partnership
CARLSBAD: WIEGAND.stp C145.17 (06/27196 QOSam) 2
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I e 0.
SUPERIOR COURT Of THE STATE OF CALlFORNfA
FOR THE COUNTY OF SAN OIEGO
CITY OF CARLSBAD,
A Municipal Corporation,
Plaintiff,
V.
WIEGANO PROPERTIES
PARTNERSHIP, a Caiifomia
Generai Partnership;
MISSION VALLEY ESCROW, a California Corporation:
BANK OF COMMERC€ CUSTOOlAN
FRO JEROME GARNER IRA: MARGUERlTE MILLER:
JAMES WIEGAND:
and, OOES 1 Through 50, Inclusive,
Defendants.
1 NO. PJ 7705U 1 1 1 1 STIPULATED JUDGMENT 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
)
It appearing to the Court that PfaiM CllY OF CARLS8A0, through i
record, RONALD R. BALL, CityAttorney, andASARO, KEAGY, FREELAND &MCK
Counsel, by RICHARD R. FREELAND, anddefendant MEGANO PROPERTlES Pi
EXHIBIT ‘h ”
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0 a.
a California General Partnership, ttrrough its attorneys of record, RONALD N.
stipulated that Judgment as hereinafter set forth may be entered; that defenck
VALLEY ESCROW, aCaliforniaCorporation, BANKOF COMMERCE CUSTOOIAN
GARNER IRA, MARGUERITE MILLER, JAMES WEGANO, OANtEL H, \NIEGAND,
Oaniel H. Wiegand Tmst dated 11/79/86, as amended, and the FRANCHfSE TAX
filed disclaimers; and it further appearing to be a proper case therefor;
IT IS ORDERED, AOJUOGED AND DECREED:
9. That PIaintiff seeks to take, acquire and condemn the rights, title and
property as described and depicted in Exhibit "7" to Plaintiffs Complaint, to whic
hereby made and by this reference, said descriptions are made a part hereof as i
2. That the condemnation and taking thereof is for the public purposes
Compiaint and is necessary for such public use;
3. That the payment to defendant WEGAND PROPERTIES PARTNERS
General Partnership, in the sum of $70,000.00, for the taking of the real property i
real property, shall constitute full and final payment for Ute condemnation and tak
property and interests in real prope-rty, and extinguishes all defendants' claims wi
been made in this action, induding, but not limited to compensation for improveme
damages, interest, fees, casts, litigation expenses, precondemnation damages, (
and all deiendant's claims relating to this action;
4. That said payment as hereinabove speded shall terminate, cancet,
all liens, leaseholds, and encumbrancesof whatsoever nature on said real prop4
5- That defendants MISSION VALLEY ESCROW, a California Corpora
COMMERCE CuSTdOIAN FEO JEROME GARNER IRA, MARGUERITE MI
WIEGAND, DANIEL H. WIEGAND, Tiustee of the Oaniel H. Wiegand Trust date
~ CARtSW WIEGANO.jdg Cf4517 (06/27M 9:459n) 2
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e 0 I I amended, and the FRANCHISE TAX 80AR0, n'led disclaimers and having filed disc
I. defendants are not entitled to any compensation herein; 1 K fS FURTHER ORDERED, ADJUDGED AN6 DECREED: 1
6. That said total sum of $70,000.00 be distributed as fallows:
a. The County Treasurer is herein authorized to issue a warran
WIEGANO PROPERTIES PARTNERSHIP, a California Generat Partnership, for sal
$56,400.00 in care of its attorney, RONALD N. PAUL
b. Plaintiff CITY OF CARLSBAO issue a ci-tedc to defenda
PROPERTIES PARTNERSHIP, acalifornia General Partnership, in the amount of :
care of its attorney, RONALD N. PAW
c. The County Treasurer is herein authorized to issue a wan
for the balance of the principal sum previousfy deposited with the Court, if any. PI
interest to the date of the withdrawais;
?. That Plaintiff seeks to take, acquire, condemn and OWR the interes
property referred to and described herein;
8. That Possession having been taken by Plaintiff on May 31, 1996, all ta
costs, liens, leaseholds, and encumbrances of whatsoever nature which are a lien
and which are apportioned to that portion of the fiscal year after said date are he
pursuant to sections 5081 et seq, of the Kevenue and Taxation. Code;
9. That trial, the right to trial, hearing OR the issues, the making and filing
of Decision, the right to- mave for a newtrial or appeal, Notice of Entry af Judg~
of Recording Final Order of Condemnation are waived, and that upon payment t
herein specified, that Plaintiff shall be entitfed ta a Final Order of Condemnation.
Dated:
Judge of the Superior Court
CARtsaAos wIH;AE(D.jdp Ct4!5.1T (asmmS Q4Sm) 3
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- e 0
F KENNETH E. MAATONE ULE
Clerk Of the SuDerror Court
JN 2 2 1996
BY: M. PEABODY, Oepu;
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNN OF SAN OIEGO
CIN OF CARLSBAD,
A Municipal Corporation,
Plaintiff,
V.
WIEGAND PROPERTIES
PARTNERSHIP, a California
General Partnership:
MISSION VALLEY ESCROW, a
California Corporation:
BANK OF COMMERCE CUSTODIAN
FBO JEROME GARNER IRA;
MARGUERlTE MILLER:
JAMES WIEGAND; and, DOES 1 Through 50, Inclusive,
) NO. N 71050, 1 1 1 1 STIPULATED JUDGMENT 1 1 1 1 1 1 1 1
) 1 1 1 1 1 Defendants. 1 1
It appearing to the Court that Plaintiff CITY OF CARLSSAD, through it!
record, RONALD R. BALL, City Attorney, andASAR0, KEAGY, FREELAND &MCKII
Counsel, by RICHARO R. FREELAND, and defendant WIEGAND PROPERTIES PA
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a California General Partnership, through its attorneys of record, RONALD N, I
stipulated that Judgment as hereinafter set forth may be entered: that defendan
VALLEY ESCROW, a California Corporation, BANKOF COMMERCE CUSTOOIAN FE
GARNER IRA, MARGUERITE MILLER, JAMES WIEGAND, DANIEL H. WIEGAND, T
Daniel H. Wiegand Trust dated 11/19/86, as amended, and the FRANCHISE TAX 8(
filed disclaimers; and it further appearing to be a proper case therefor;
IT IS ORDERED, ADJUDGED AND DECREED:
1. mat Plaintiff seeks to take, acquire and condemn the rights, title and in,
property as described and depicted in Exhibit '"t" to P!aintiffs Complaint, to which
hereby made and by this reference, said descriptions are made a part hereof as if fi
2. That the condemnation and taking thereof is for the public purposes se
Complaint and is necessary for such public use;
3. That the payment to defendantWlEGAND PROPERTIES PARTNERSHIP
General Partnership, in the sum of $70,000.00, for the taking of the real property an(
real property, shall constitute full and final payment for the condemnation and takins
property and interests in real property, and extinguishes ail defendants' claims whici
been made in this action, including, but not limited to compensation for improvement!
damages, interest, fees, costs, litigation expenses, precondemnation damages, 0th
and all defendant's. claims relating to this action:
4. That said payment as hereinabove specified shall terminate, cancel, an
all liens, leaseholds, and encumbrances of whatsoever nature on said real properP,
5. That defendants MISSION VALLEY ESCROW, a California Corporatioi
COMMERCE CUSTOOIAN FBO JEROME GARNER IRA, MARGUERITE MILL
WIEGAND, DANIEL H. WIEGAND, Trustee of the Daniel H. Wiegand Trust dated 1
CARLSBAD: ~NEGANO.jdg Ct45.17 (07/17/96 3:41pm) 2
.,
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0 a.
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defendants are not entitled to any compensation herein; * amended, and the FRANCHISE TAX BOARD, filed disclaimers and having filed disc
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4.
§
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED:
6. That said total sum of $70,000.00 be distributed as follows:
a. The County Treasurer is herein authorized to issue a warran'
7.
a
9 6. Plaintiff CtTY OF CARLSBAD issue a check to defendar
WIEGANO PROPERTIES PARTNERSH IF, a. California General Partnership, for sai
$56,400.00 in care of its attorney, RONALD N. PAUL;
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care of its attorney, RONALD N. PAUL; 11
PROPERTIES PARTNERSHIP, a California General Partnership, in the amount of S
'2 1 c. The County Treasurer is herein authorized to issue a warn
13' I for the balance of the principal sum previously deposited with the Court, if any, pl~
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18. 8. That Possession having been taken by Plaintiff on May 31, 1996, all tax
19.. costs, liens, leaseholds, and encumbrances of whatsoever nature which are a lien (
20 and which are apportioned to that portion of the fiscal year after said date are her
21 pursuant to sections 5081 et seq. of the Revenue and Taxation Code:
interest to the date of the withdrawals;
7. That Plaintiff seeks to take, acquire, condemn and own the interest:
property referred to and described herein:
22 I 9- That trial, the right to trial, hearing on the issues, the making and filing o
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2f
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of Decision, the right to move for a new trial or appeal, Notice of Entry of Judgme
of Recording Final Order of Condemnation ate waived, and that upon payment to
herein specified, that Plaintiff shall be entitled to a Final Order of Condemnation.
Dated: JUL 2 2 7% L18AQw-
Judge of the Superior Court
I
CARLSBAO: WIEGAND.jdg C145.17 (07/17/96' 3:41pm) 3