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Home My WebLink About1997-07-22; City Council; 14280; AUTHORIZING APPROVAL OF AN AGREEMENT TO DISMISS CEQA WRIT PROCEEDING IN BECKMAN INSTRUMENTS, INC. V. CITY OF CARLSBAD (N75252)FlTY OF CARLSBAD - AGENba BILL “1 / AB# IY; a80 AGREEMENT TO DISMISS CEQA WRIT PROCEEDING DEPT. HD. TITLE: AUTHORIZING APPROVAL OF AN MTG. 7/22/97 IN BECKMAN INSTRUMENTS, INC. V. CITY OF ClN ATTY. CARLSBAD (N75252) CITY MGR. DEPT. CA c RECOMMENDED ACTION: Adopt Resolution No. 4 ’? 5 48 , approving an Agreement to Dismiss CE Proceeding and authorizing the Mayor to sign. ITEM EXPLANATION: On July 1, 1997 Beckman Instruments filed a Writ of Mandate to set aside the Plannins determination of prior compliance for CEQA purposes regarding potential acquisition o Property. Staff has determined and recommends that the City Council promise not to I determination of prior compliance as the environmental document for potential acquisit Beckman site. Beckman Instruments is willing to dismiss the writ proceeding without c City upon City Council’s promise not to utilize the determination of prior compliance or defenses relating to timeliness. The City Attorney recommends that the City Council approve of the Agreement to Disn Writ Proceeding in the lawsuit entitled Beckman Instruments, Inc. v. CiW of Carlsbad E authorize the Mayor to sign. Staff has already begun a new environmental analysis of the project. d iu 3 M ?L FISCAL IMPACT: 3 None by this action. % EXHIBITS: 1. Resolution No. 9 7- 578 C 0 .- -I4 3 - .- c4 c 3 s t 1 2 3 4 5 6 7 8 9 10 11 SuJ~ :? 1 %%!$ oug s:J$ ~k’g OZLO “cc%a $0 >-2% ow iU, 2;Q “nu. zwv) ix <o-l 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 e 0 RESOLUTION NO. 97-548 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBA[ CALIFORNIA AUTHORIZING THE APPROVAL OF THE AGREEMENT- DISMISS CEQA WRIT PROCEEDING IN BECKMAN INSTRUMENTS, II V. CITY OF CARLSBAD (N75252) WHEREAS, on July 1 , 1997 Beckman Instruments filed a Writ of 1 to set aside the Planning Director’s determination of prior compliance for CEQP purposes regarding potential acquisition of Beckman Property; and WHEREAS, staff has determined and recommends that the City ( promise not to utilize the determination of prior compliance as the environment; document for potential acquisition of the Beckman site; and WHEREAS, Beckman Instruments is willing to dismiss the writ prc without cost to the City upon City Council’s promise not to utilize the determina prior compliance or raise defenses relating to timeliness; and WHEREAS, on recommendation of the City Attorney, the City Co the City of Carlsbad, California has determined that approval of the Agreemeni Dismiss CEQA Writ Proceeding in the lawsuit entitled Beckman Instruments. Ir of Carlsbad is in the public-interest; and NOW, THEREFORE, BE IT RESOLVED by the City Council of tt Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Council approves the Agreement (attached as E Ill Ill Ill 28 Ill 1 om $ZcA a08 ow2 $055 9 9" akm$ oz-lo ""$0 SUJ$ ct->g Ed2 E:? p% a> iU, 0 zwv) a01 0" - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 28 0 0 3. That the Mayor is authorized and directed to execute the Agree on behalf of the City. PASSED, APPROVED AND ADOPTED at a Regular Meeting of tt- Council of the City of Carlsbad on the 22nd day of July , 1997, b following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaatd, Kulchin, NOES: None ABSENT: None - ATTEST: QhZL 4. QhTA ALETHA L. RAUTENKRANZ, City Clerq 1 1 1 2 0 0 t , AGREE= This -mat js made anti entered Ins, on July -, 1997 by and between Beckman ~m,nstruments, mc. ("kkman"), a Wwam carpomtioa, and the city of Carlsbad (the "City"), a California munic@al corporation, with mgd to the foltowhg tecita[s: A. On JU~ 2,199, the city pqar~d a "Notice of Prior ~ompliaa~e," based on an una~rlying "Bnvironmentat Impact Assessmmt,' fm a Planning Commission Determinadon of General Plan Consistency in comation with the City's intended acquisition of al property . owned by Beckman and situated m the east sidt: of EEP cafnino Iceat and $outhefly of Farday Avenue (refemxi to by the City as "PCDIGK 97-01 - Beckman Pmperty"). B. Qn June 19,1997, the city posted a noti= of public heating ts, be conducted by the Planning commission on My 2,1997 far VCDKW! 07-01 - &ban b~@~ C, On July 1, 1997, Beckman flkd and served a Legal action entitled Beckman -ts, Inc. v. City of CMsbad beating San Riego County Superior Cwrt cas0 No. (the "Adion"). The Action has beea bmught under the CaliFornia EnvimmtaI'Quality Act with mpect to the "Nodce of prior Compliance" and underlying "-entat Impact ASseSgment" prelpared fa "PCDIGPC 97-01 - l%ha mq.' . D.. On July 2,1997, the City detertnined to remove the "PCWGPC 9781 - Beckmaa propertytf itrm OE the ~~'~ommirsi~n's agenda'rather thran codme thc item to a date cerlah, with the intent of completing additional environmental reylew. At the same time, e City rqwtcd'that Beckman dfsmiss the Actlon withoirt prejudice. E. Beckman is willing to dismiss the Action on the baais of the terms and conditions of thi8'AgEeement. NOW, TEERRWORR, ~~~IUMI and the City am act €dtms: 1. ~e~agkeesthatthe"pcD/cj;pc97-01-~kmanpfoperty"itemw~~otbe restored to the Planning Co&sion's agenda until after the compIetion of additional ellvironmend review. 2. Withintbree (3) ba~esss'days of few@ of thi~ Agreement exmW by the City's rCy=ntatWs, Bechan am to. and shall ex.ecuk and file with the Court a quest fm dismissal of the Action without prejudice. 3. lhckqan ~~~rvcs the right to bring admhiWve and judicial cbdhges to any docrrmmts and/or dons arising out of or baed on any additional cxwirod review to be mrnpleted for the "PCDIGPC 97-01 - €?eckman Pmpay" project. 1 0 0 4. In the mat the City determines to p- with he mp~~/GPC 97-01 - Beckman Proprty" Prajwt On the basis of OT in reliance on the prwiously prepared "Notice Of Prim from wfilbg the ActlOn tx another pleading containing the allegations set forth in Ute Action, and the City hby agrecs CO waive and not to assert any detknses thereto based on any grounc relating to timeliness or the passage of he, including but not limited to the statute of limitationi and laches. Compliance" and "~ir~~ctltal Impact Asxxment," then Beckman shall not be precluded 5. Bath of the persona exanting this Agreement wanant and wvt that he or she is authorized lo do sc) and thereby bind the paay on whose behalf such execution was mado tc # the d~thl an'd obligaticm mntahd i this Agmmmt. BBCKMAN LNSTRUMENTS, INC. CITY OF CARLSAD By:* By: Mayor Title; AlTESZ By! - city clerk . nw. APPROVED AS TO FORM. Rutan & Tucker, LLP' . Of€iceoftb&CityAttorney Citg of Cdbad By: Philip D. Kohn By: . Amrneys for Beckman InstnunentS, Inc. RoddRBall cj-fy Attorney 2 (0 (0 AGREEMENT TO DISMISS CEOA WRIT PROCEEDING This Agreement is made and entered into on July 22, 1997 by and between Beckmi Instruments, Inc. ("Beckman"), a Delaware corporation, and the City of Carlsbad (the "City" a California municipal corporation, with regard to the following recitals: A. On June 2, 1997, the City prepared a "Notice of Prior Compliance," based on 1 underlying "Environmental Impact Assessment, I' for a Planning Commission Determination General Plan Consistency in connection with the City's intended acquisition of real proper owned by Beckman and situated on the east side of El Camino Real and southerly of Farad' Avenue (referred to by the City as "PCD/GPC 97-01 - Beckman Property"). B. On June 19, 1997, the City posted a notice of public hearing to be conducted 1 the Planning Commission on July 2, 1997 for "PCD/GPC 97-01 - Beckman Property." C. On July 1, 1997, Beckman filed and served a legal action entitled Beckm: Instruments, Inc. v. City of Carlsbad bearing San Diego County Superior Court Case N N75252 (the "Action"). The Action has been brought under the California Environment Quality Act with respect to the "Notice of Prior Compliance" and underlying "Environment Impact Assessment" prepared for "PCD/GPC 97-01 - Beckman Property. 'I D. On July 2, 1997, the City determined to remove the "PCDIGPC 97-01 - Beckm: Property" item off the Planning Commission's agenda rather than continue the item to a da certain, with the intent of completing additional environmental review. At the same time, tl: City requested that Beckman dismiss the Action without prejudice. E. Beckman is willing to dismiss the Action on the basis of the terms and conditio1 of this Agreement. NOW, THEREFORE, Beckman and the City agree as follows: 1. The City agrees that the "PCD/GP@ 97-01 - Beckman Property" item will not k restored to the Planning Commission's agenda until after the completion of addition; environmental review. 2. Within three (3) business days of receipt of this Agreement executed by the City representatives, Beckman agrees to and shall execute and file with the Court a request fc dismissal of the Action without prejudice. 3. Beckman reserves the right to bring administrative and judicial challenges to an documents and/or actions arising out of or based on any additional environmental review to b completed for the "PCD/GPC 97-01 - Beckman Property" project. 130/015911-0008/3090039.1 a07116197 1 c* (0 4. In the event the City determines to proceed with the "PCD/GPC 97-01 - Beckmi Property" project on the basis of or in reliance on the previously prepared "Notice of Pri Compliance" and "Environmental Impact Assessment,'' then Beckman shall not be precludc from refiling the Action or another pleading containing the allegations set forth in the Actio and the City hereby agrees to waive and not to assert any defenses thereto based on any grow relating to timeliness or the passage of time, including but not limited to the statute of limitatio and laches. 5. Each of the persons executing this Agreement warrant and represent that he or SI is authorized to do so and thereby bind the party on whose behalf such execution was made 1 the duties and obligations contained in this Agreement., BECKMAN INSTRUMENTS, INC. 1 By: & [(i a Title: Vice Pres., Finance Mayor ATTEST: &&& 2 0- City Clerk APPROVED AS TO FORM: Rutan & T er, L P By: Philip &&L , Kohn Attorneys for Beckman Instruments, Inc. Office of the City Attorney City of Carlsbad By: hL. -Q k-.q& Ronald R. Ball City Attorney - 130/015911-0008/3090039.1 a07/16/97 2