HomeMy WebLinkAboutCantarini LLC; 2016-05-25;AGREEMENT
AN AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND CANTARINI, LLC, REGARDING THE ACQUISITION
OF CERTAIN EASEMENTS FOR DRAINAGE AND OTHER
PURPOSES AS REQUIRED FOR THE CANTARINI RANCH
PROJECT
This Agreement is made this a 6#J day of ~ , 2Dfuy and
between the CITY OF CARLSBAD, California, a municipal corp at1on (hereinafter called ·
"City") and CANTARJN!, LLC, (hereinafter called "Subdivider").
RECITALS
A. Subdivider, as a condition of City of Carlsbad Planning Commission Resolution
No. 5753, approving CT 00-18 for the Cantarini Ranch Project, is required to dedicate and
provide certain improvements to wit:
B. Subdivider shall construct Detention Basin "BJ" just east of the intersection of
College Boulevard and Cannon Road as shown on the Tentative Map, including the box
culvert outlet structure crossing College Boulevard.
C. It is necessary that Subdivider secure an inundation easement and install
improvements thereon and in accordance with specifications of the City of Carlsbad.
D. Subdivider wishes to acquire by a negotiated purchase the required easement for
drainage and other purposes for the subdivision, and requests that the City assist in the
acquisition up to and including the exercise of the City's power of eminent domain if required.
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 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 pay the costs of retaining a qualified attorney or attorneys
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to provide oversight of the acquisition process and prepare and file on behalf of the
City all documents, pleadings and processes 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 retained by the City and approved by the City Atto~ney.
2. Subdivider agrees to bear all expenses, costs, fees, and charges, including
attorneys', engineers, appraisers or other professional services 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 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 agrees to pay the costs of retaining 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.
5. Subdivider shall pay all amounts, plus interest, as required to prosecute the
acquisition process and any judgment or settlement in payment for easements to be
acquired. City shall assume no responsibility for said payments.
6. The parties hereby agree to seek an order of immediate possession for the
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real property necessary for the improvements and facilities and related easements and
comply with the legal procedures necessary therefor. The Subdivider sha!l be responsible
for the deposit of funds, posting of security, or payment of any costs associated with the
order of immediate possession. The City estimates the costs of litigation to be $50,000.
This amount shall be deposited with the City by Subdivider prior to initiation of eminent
domain proceedings. It is acknowledged that this is a best estimate of the costs .and city may
require additional funds. City will return any unused funds to developer at the conclusion of
the proceedings
7. City retains the right to assume primary responsibility for the subject litigation
at any time and to prosecute it to completion with all costs, including attorneys' fees, to be
borne by the Subdivider.
8. Prior to initiation of eminent domain proceedings, and prior to the bidding
or awarding of contracts for any work or improvements on the easement, Subdivider shall, at
its sole expense, retain a competent appraiser to estimate the value of the easement and
post one hundred ten percent (110%) of the estimated value with the City as a cash security
deposit. The City may at its discretion, use this cash security deposit to satisfy any legal
obligations created by this agreement. Subdivider acknowledges that the cost of acquisition
and other legal obligations of Subdivider may substantially exceed the estimated value and
acknowledges that it will pay all amounts due under this agreement, even if the amount due
exceeds the amount of the cash deposit.
9. 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. 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 Government Code. Subdivider
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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.
CANTARINI, LLC,
By:
(sign here)
'be"-f\. 1 s 0 jdrrel'\ }1ot.~~.,~jer-
ATTEST:
By:
(sign here) ~..&o.fu£W~fr'-sARB RA ENGLESON
City Clerk
{print name/title)
Proper notarial acknowledgment of execution by Contractor must be attached. D
corporation, Agreement must be signed by one corporate officer from each of the following
two groups:
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
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State of California
County of San Diego
on November 23, 2015
ACKNOWLEDGMENT
before me, Karen L. Falette, Notary Public
(insert name and title of the officer)
personally appeared Dennis O'Brien
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/afieo.
subscribed to the within instrument and acknowledged to me that he/~y executed the same in
his/.ker/tl-reir authorized capacity(ies), and that by his/herJ.tAeir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature ~ J.. ~ {Seal)