HomeMy WebLinkAboutCT 80-38; MET BIRTCHER-PALOMAR OAKS; 83-208083; Hold Harmless Agreement/Release20 8 0«3e?
Recording requested by and
when recorded, please return to: 83 Jjf\! 2 1 £>.( ;r-
City of Carlsbad
1200 Elm Avenue
Carlsbad, California 92008
(Space above this line for Recorder's use only) MO PEL
FIRST AMENDMENT TO
HOLD HARMLESS AGREEMENT RE: DRAINAGE
This FIRST AMENDMENT TO HOLD HARMLESS AGREEMENT
RE: DRAINAGE (hereinafter "First Amendment") is made and
entered into as of August 6, 1982 by and between MET
BIRTCHER-PALOMAR OAKS, a California, general partnership
(hereinafter "Palomar Oaks") having an office at 27611 La
Paz, Laguna Niguel, California, PALOMAR OAKS BUSINESS CENTER
ASSOCIATION, a California non-profit mutual corporation
hereinafter "Association" and the CITY OF CARLSBAD, (herein-
after "City") having an office at 1200 Elm Avenue, Carlsbad,
California with reference to the following facts:
A. BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR, a
California limited partnership, (hereinafter "Birtcher"),
the predecessor in interest to Palomar Oaks, executed that
certain Hold Harmless Agreement Re: Drainage dated August 5,
1981 (hereinafter the "Hold Harmless Agreement") in favor of
the City and recorded as Instrument Number 82-198689 on June
28, 1982 in the Official Records of San Diego County,
California.
B. The Hold Harmless Agreement was entered into by
Birtcher in connection with the development of certain real
property located in the City of Carlsbad, Carlsbad Tract
80-38 (APN 213-020-16), more particularly described in
Exhibit "A" attached hereto and incorporated herein by this
reference (hereinafter the "Property").
C. BIRTCHER entered into the Hold Harmless Agree-
ment as a condition for the approval by the City of the
drainage system for the Property (hereinafter the "System")
consisting of (i) the drainage plans, Plan No. 211-8A and
(ii) the improvement plans, Plan No. 211-8 (hereinafter
collectively "Plans").
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D. The Property has been divided into a planned
unit development consisting of twenty (20) lots (hereinafter
"Lots") which development shall be administered, managed and
maintained in accordance with that certain Supplement and
Restatement of Declaration of Covenants, Conditions and
Restrictions and Reservations of Easements for Met Birtcher-
Palomar Oaks which is to be recorded in Official Records of
San Diego County and which is to supersede that certain
Declaration of Covenants, Conditions and Restrictions and
Reservations of Easements for Palomar Oaks, a Birtcher Busi-
ness Center, filed September 23, 1981 as Instrument
81-303600 in Book 1981, Pages 797 to 881 in the Office of
the San Diego County Recorder (hereinafter collectively the
"Declaration") .
E. The Association has been formed pursuant to
those certain Articles of Incorporation dated September 21,
1981 and filed in the Office of the Secretary of State of
the State of California on September 21, 1981 as Instrument
Number 1055753. The Association shall be composed of the
owner's of the Lots (hereinafter the "Owners") and is
responsible for the maintenance and repair of the System as
more particurlarly described in the Declaration.
F. Palomar Oaks, the Association and the City now
desire to amend and restate the Hold Harmless Agreement in
its entirety, effective as of August 6, 1982.
NOW, THEREFORE in consideration of the premises and
for other good and valuable consideration, the receipt
whereof is hereby acknowledged, the Hold Harmless Agreement
is hereby amended and restated in its entirety, effective as
of August 6, 1982 by this First Amendment to read in full as
follows:
I. APPROVAL OF PLANS
The City shall not be an insurer or surety for
the design or construction of the improvements pursuant to
the Plans, nor shall any officer or employee thereof be
liable or responsible for any acts, loss or damage happening
or occurring during the construction, work or improvements
pursuant to the Plans.
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II. MAINTENANCE OF DRAINAGE SYSTEM
The Association shall maintain the System
unless the System is dedicated and accepted as public facil-
ities by appropriate governmental agencies.
III. INDEMNITY AND HOLD HARMLESS
The Association shall indemnify and hold the
City and any of its agencies or employees harmless from and
against any liability imposed on the City for injuries to
persons, or damage to or taking of property, caused by (i)
the diversion of waters, the alteration of the normal flow
of surface waters or drainage, or the concentration of
surface waters or drainage resulting from the System or (ii)
by the design, construction or maintenance of the System or
other improvements identified in the Plans (the "Indemnity").
IV. SETTLEMENT OF CLAIMS
The City shall notify the Association promptly
upon its receipt of notice of any claim, obligation, suit or
demand giving rise to liability hereunder and shall not
adjust, settle, or compromise any such claim, obligation,
suit or demand without the respective prior written consent
of the Association.
V. PARTIES OBLIGATED
It is expressly agreed that neither Birtcher
nor Palomar Oaks nor the constituent general partners of
Birtcher or Palomar Oaks shall have any personal liability
for the payment of the indemnity except in their capacity as
Owners. The expenses of the Association, including, without
limitation, any expenses incurred pursuant to the Indemnity,
shall be allocated among the Owners in accordance with the
terms of the Declaration.
VI. ENFORCEMENT
The City agrees that any action commenced to
enforce the terms, covenants and conditions of this First
Amendment shall be brought against the Association or all
Owners joined in one action, or both, and that any judgment
or decree shall be enforceable against such parties except
as otherwise limited by the provisions of Article VII hereof.
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VII. LIMITATION OF LIABILITY
Notwithstanding anything contained herein, the
total obligation and liability of each Owner for the Indem-
nity hereunder shall be limited to the lesser of (i) such
Owner's allocable share of the expenses of the Association
determined pursuant to the Declaration; or (ii) the value of
such Owner's equity interest in a Lot. Except as expressly
set forth in or limited by this paragraph, no Owner shall
have any personal liability for the Indemnity.
VIII. GOVERNING LAW
This First Amendment shall be governed by and
construed in accordance with the laws of the State of
California.
IX. AMENDMENT
No amendment or modification of this First
Amendment shall be effective for any purpose unless agreed
to in writing by the City and Palomar Oaks or, upon its
formation, the Association.
X. EXTENT OF AMENDMENT
This First Amendment shall supersede and
replace the Hold Harmless Agreement in all respects and upon
the recordation of this First Amendment, the terms and
provisions of the Hold Harmless Agreement shall be of no
further force and effect.
XI. BINDING EFFECT
This First Amendment shall inure to the benefit
of and be binding upon the parties and their respective
successors and assigns. Nothing in this First Amendment,
whether express or implied, is intended to confer any rights
or remedies by operation of law, through theory of subroga-
tion or otherwise, in or for the benefit of any persons or
entities other than the City.
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XII. ATTORNEYS' FEES
In any litigation between the parties arising
out of or in connection with this First Amendment, the
prevailing party shall be entitled to recover against the
losing party, in addition to damages, injunctions and other
relief to which such party may be entitled, its cost and
expenses, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the undersigned, intending to be
legally bound hereby, have caused this First Amendment to be
duly executed as of the date first written above.
"PALOMAR OAKS"
MET BIRTCHER-PALOMAR OAKS, a
California general partnership
By: METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By:
z t s. ASSISTANT VICE PRESIDE]
By: BIRTCHER BUSINESS CENTER-
CORPORATE PALOMAR, a
California limited partnership
By: CAMPBELL-PALOMAR,
a California general
partnership
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By: "ASSOCIATION
PALOMAR OAKS BUSINESS CENTER
ASSOCIATION /
a California non-profit mutual
corporP "
APPROVED.AS TO FORM
.'tfntschke,
Assistant City Attorney
Skillman, President
rCity"
CITY OF CARLSBAD
By:
Its:~1
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u
EXHIBIT A
DESCRIPTION OF PROPERTY
PARCEL 1.
LOTS 1 THROUGH 20, INCLUSIVE, OF CARLSBAD TRACT NO. 80-38,
IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10198, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 15, 1981.
PARCEL 2.
EASEMENTS GRANTED IN ACCORDANCE WITH THE TERMS OF THAT
CERTAIN GRANT OF EASEMENTS DATED JULY 29, 1981, EXECUTED
BY MITSUI FUDOSAN (U.S.A.), INC., A CALIFORNIA CORPORATION,
DBA PALOMAR AIRPORT BUSINESS PARK, AS OWNER, AND BIRTCHER
BUSINESS CENTER-CORPORATE PALOMAR, A CALIFORNIA LIMITED
PARTNERSHIP, AS GRANTEE, RECORDED AUGUST 4, 1981 AS FILE NO.
81-246287 OF OFFICIAL RECORDS.
STATE OF CALIFORNIA
COUNTY OF
ss
On 1983, before me, the under-
b'lic in and for said State, personally
personally
signed, a JSJotary
appeared
known tome (or ^ proved on^ the basis of satisfactory
evidence) to be the person w,ho-. executed the within instru-
ment as the Q(M foHlflt OiCJL })\JL& If(t_jjfl4~ on behalf of
METROPOLITAN LIFE INSURANCE COMPANY, the corporation that
executed the within instrument, said corporation being known
to me to be a general partner of MET BIRTCHER - PALOMAR
OAKS, the general partnership that executed the within
instrument, and acknowledged to me that such corporation
executed the same as general partner pursuant to its by-laws
or a resolution of its board of directors and that such
general partnership executed the same.
Witness my hand and official seal
•'™»"nniiimim,,,,,m,11IllBI!JiMI!H|I|II|B
l/&^§\ OFFICIAL SEAL §
(SEALJj
H
J. M. FITZGERALD B
NOTARY PUBLIC - CALIFORNIA "
SAN MATEO COUNTr S
My Comm. Expires May 10, 1886 I
O 0 Jfi 1 (<(/ X A(A^ ( '
jvrw M.miPttrt.(qfn.i)
Name (typedv) or printed)
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'w - 10
STATE OF CALIFORNIA )
COUNTY OF U/^C*- -'<-\}L.- )
On rfl asL<i<.~~. /L? 1983, before me, the
undersigned, a Notary Publicin and for said County and State,
duly commissioned and sworn, personally appeared ROBERT M.
CAMPBELL, proved to me on the basis of satisfactory evidence to
be one of the general partners of CAMPBELL-PALOMAR, a California
general partnership, and to be the person who executed the
within instrument on behalf of said Campbell-Palomar, said
Campbell-Palomar being proved to me on the basis of satisfactory
evidence to be one of the two limited partners of BIRTCHER
BUSINESS CENTER - PALOMAR, a California limited partnership, the
limited partnership that executed the within instrument, and
acknowledged to me that said Campbell-Palomar executed the same
as such partner of said Birtcher Business Center-Corporate
Palomar, and that said Birtcher Business Center-Corporate
Palomar executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
RITA L. CUMMINGS
NOTARY PUBLIC4AUFORNIA
ORANGE COUNTY
Notary Public
[Seal]
11
, 1983, before me, the under-
and for said State, personally
STATE OF CALIFORNIA )
n > >COUNTY OF V'f^'^-'^y-— )
On /? / tz->c-&s£- I &
signed, a NotaryPublicin
appeared JOHN SKILLMAN, known to me, or proved on tbe basis of
satisfactory evidence, to be the President of the PALOMAR OAKS
BUSINESS CENTER ASSOCIATION, a California non-profit mutual
corporation, that executed the within instrument, and known to
me to be the person who executed the within instrument on
behalf of the corporation therein named, and acknowledged to
me that such corporation executed the within instrument pur-
suant to its by-laws or a resolution of its board of
directors.
WITNESS my hand and official seal.
ORANGE COUNTY
My Commission Exp. Mar, 24, IMS
Notary Public in and for
Said County and State