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Home My WebLink AboutBirtcher Business Center - Corporate Palomar P II; 1985-08-20; PUD38AGREEMENT AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND BI RICHER REGARDING THE ACQUISITION OF CERTAIN EASEMENTS FOR STREET AND OTHER PURPOSES AS REQUIRED FOR SUBDIVISION CT 82-A/PUD38. PALOHAR OAKS II This Agreement is made this 20th day of AUGUST 1985 by and between the City of Carlsbad, California, a municipal corportion (hereinafter called "City") and BI RICHER BUSINESS CENTER -CORPORATE PALOMAR Phase II (hereinafter called "Subdivider" ). RECITALS A. Developer is required as a condition of Resolution No- 1995 of the [City Council] [Planning Commission] of the City of Carlsbad, approving with conditions Tentative Map CT 82-4/PUD 38 , to dedicate and provide certain improvements to wit: ADDITIONAL DRAINAGE EASEMENTS AND DRAINAGE STRUCTURES SHALL BE PROVIDED OR INSTALLED . B. The acquisition and development of DRAINAGE EASEMENTS AND DRAINAGE STRUCTURES as an off-site improvement for the subdivision is essential to provide needed public facilities for the subdivision and to mitigate the public facilities burdens created by the subdivision. C. it is necessary that Subdivider secure said easement 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 and other Exhibit A purposes for the subdivision, and requests that the City assist in the acquisition by exercise of the City's power of eminent domain. E. This Agreement is authorized by and is entered into pursuant to Section 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the state Government Code. NOW, THEREFORE, in consideration of the mutual covenants contained herein and of the recitals, it is mutually agreed by and between the parties as follows: 1. Subdivider agrees to retain on behalf of the City a qualified attorney or attorneys to prepare and file on behalf of the City all documents, pleadings and process necessary to acquire the required easements through an action in eminent domain. Said attorney or attorneys will either be associated with the City Attorney in the eminent domain proceeding, or will independently pursue the eminent domain action on behalf of the City, as the City in its discretion determines. The attorney or attorneys shall be approved by the City Attorney and subdivider agrees not to replace the attorney or attorneys without the City Attorney's consent. The City Attorney's approval or consent shall not be unreasonably withheld. 2. Subdivider agrees to bear all expenses, costs, fees, and charges, including attorneys', engineers, appraisers or other professional service fees incurred or charged in connection with the acquisition of the various property interests and the preparation and prosecution of the eminent domain proceeding, and -2- City shall assume no responsibility for said amounts. There shall be no charge for City staff time associated with this project. 3. It is understood and agreed that even though the City is party plaintiff, it shall assume no financial responsibility in said eminent domain action and that as further proceedings are required, outside counsel shall assume primary responsibility and direction of any actions subject to any necessary approvals of the City. The City agrees to cooperate and assist in commencing and prosecuting said condemnation action in an expeditious manner for the purpose of completing same as soon as reasonably possible in accordance with applicable laws. 4. Subdivider shall retain at its sole expense any appraiser, engineer or other expert witness, as mutually agreed upon by Developer and City, to provide any necessary appraisal, engineering or other information in a form suitable for use in connection with said condemnation proceedings. Any appraiser, engineer and other expert witness required shall be paid directly by Subdivider. City shall assume no responsibility for such payment. 5. Subdivider shall pay all amounts, plus interest, as required as a result of any judgment or settlement in payment for easements to be acquired. City shall assume no responsibility for said payments. 6. The parties hereby agrees to seek an order of immediate possession for the real property necessary for the improvements and facilities and related easements and comply with the legal procedures necessary therefor. The Subdivider shall be -3- responsible for the deposit of funds, posting of security, or payment of any costs associated with the order of immediate possession. 7. City retains the right to assume primary responsibility for the subject ligitation at any time and to prosecute it to completion with all costs, including attorneys' fees, to be borne by the Subdivider. 8. It is understood that prior to the initiation of any eminent domain proceedings, it will be necessary for the City in its sole discretion to adopt a resolution of necessity for the acquisition of the property and to make the necessary findings as required by law. The adoption of a resolution of necessity shall be a condition precedent to any obligation of the Subdivider herein. City agrees to use due diligence in processing the matter to hearing before the City Council in order to ensure compliance with the time limits established by Section 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the state Government Code. Subdivider agrees that any failure by the City to comply with the time limits, however, 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 executed this Agreement on the day and year first above written. 4. 7 DATED ATTEST: CITY OF CARLSBAD A Municipal Corporation the State of?California MARY H. CASLER, Mayor CLAUDE A. LEWIS, Mayor Pro-Tern (THA L.-^RALWENKRS»Z, City Clerk CAREN R. KUNDTZ, Deputy City Clerk SUBDIVIDER BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, a California limited partnership By: CAMPBELL-PALOMAR II, a California-' general partnership, General Partner By: BIRTCHER PACIFIC II, a^California general partnership, By: 5. c ACKNOWLEDGMENT C STATE OF CALIFORNIA COUNTY OF On IgJ^-^ to, 19 %~S^ , before me, the undersigned, a Notary Public in and for said State, personally appeared ~ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed, the within instrument and who is known to me to be a partner of BIRTCHER PACIFIC II, a California general partnership, which partnership is known to me to be a partner of CAMPBELL- PALOMAR II, a California general partnership, which partnership is known to me to be the general partner of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of BIRTCHER PACIFIC II, that said partnership executed the within instrument on behalf of CAMPBELL-PALOMAR II, and that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II executed the same. WITNESS my hand and official seal. OFFICIAL SEAL RITA L. CUM MINGS NOTARY PUBLIC CALIFORNIA PRINCIPAL OFUCS INORANGE COUNTYMy Comrn. Exp. ttU, 24, NOTARY PUBLIC I C Name (Typed or Printed) (SEAL) BBC-CP/CPII.l c ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF On SS before me, the undersigned, a Notary Public in and for said State, personally appeared ROBERT M. CAMPBELL, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be a partner of CAMPBELL-PALOMAR II, a California general partner- ship, which partnership is known to me to be the general partner of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of CAMPBELL-PALOMAR II, that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II executed the same. WITNESS my hand and official seal. OFFICIAL SEAL RITA L CUMMINGS NOTARY PUBLIC CALIFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY , ^~/ /U <? C Name (Typed or Printed) (SEAL) BBC-CP/CPII.2