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HomeMy WebLinkAboutCarlsbad Gateway/Davis/Walters/Gadco; 1986-05-22;4 m 0 .. AGREEMENT BETWEEN THE CITY OF CARLSBAD REGARDING ACQUISITION OF CERTAIN EASEMENTS FOR STREET AND ATTENDANT PURPOSES AS REQUIRED BY SITE DEVELOPMENT PLAN 84-5 CARLSBAD GATEWAY CENTER AN D D AV I S / WA LT E RS / GAD CQ C A R LS B AD 6 AT E W A Y &-. n ici pa I 19 J% , by and between the City of Carl= California, corporation (hereinafter called "City") and THIS AGREEMENT is made thisduay of DAVIS/WALTERS/GADCO CARLSBAD GATEWAY , (hereinafter called "Developer"). RECITALS 1. Developer is required, as a condition of Resolution No. 7956 of the City Council of the City of Carlsbad, approving Site Development Plan 84-5, to acquire offsite easements for street and attendant purposes, and to provide for the construction of certain improvements, to wit: The acquisition of the right of way for and development of Palmer Way to the Barbour Connection as provided in Conditions 34 and 35 of Planning Commission Resolution No. 2410. 2. it is necessary that Developer secure said road easements for street and attendant purposes and install improvements thereon and in accordance with specifications of the City of Carlsbad. The offsite road improvement is essential to provide public facilities for the development and to mitigate the public facilities burdens created by the development. 3. Developer has been unable to acquire by a negotiated purchase the required easements for street and attendant purposes for the development, and requests that the City assist in the acquisition by exercise of the City's power of eminent domain. 4. 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 California 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. Developer agrees to retain outside cour;sel, ASARO E KEAGY, on behalf of City, 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 outside counsel 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. 8 e 0 Le -2- Developer agrees not to replace ASARO E KEAGY without the City's consent, which will not be unreasonably withheld. 2. Developer agrees to bear all expenses, costs, fees, and charges, including attorneys', engineers', appraisers' or other profes- sional service fees incurred or charged in connection with the acquisi- tion of the various property interests and the preparation and prose- cution 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 City is party Plaintiff, it shall assume no fipancial responsibility in said emi- nent 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 City. 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. Developer shall retain, at its sole cost and expense, any appraiser, engineer, or other expert witness, as mutually agreed upon by Developer and City, to provide any necessary appraisal, engineer- ing, 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 Developer. City shall assume no responsibility for such payment. 5. Developer 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 agree to seek an Order for Immediate Possession for the real property and interests in real property necessary for the improvements and facilities and related easements, and comply with the legal procedures necessary therefor. Developer shall be responsible for the deposit of funds, posting of security, or payment of any costs associated with the Order for Immediate Possession. 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 attorney's fees, to be borne by Developer. 8. It is understood that prior to the initiation of any emi- nent domain proceedings, it will be necessary for 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 sf a Resolution of Necessity shall be a condition precedent to J a e ** -3- any obligation of the Developer herein. City agrees to use due dili- gence in processing the matter to hearing before the City Council in order to ensure compliance with the time limits established by Sec- tion 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the California Government Code. Developer agrees that any failure by City to comply with the time limits, shall not cause an invalidation of any condition of the Site Development Plan, or relieve Developer of any ob1 igation hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF CARLSBAD A Municipal Corporation of the State of California d &“&j 0, &Ab- MARY )-I. CASLEW, Mayor i ATTEST : AL~w RiLELRANZ / ?) City Clerk DAVIS/VJALTERS/GADCO CARLSBAD G A T E W A Y A California General Partnership By : R. f?ddd FRED WALTERS General Partner DK:MDDCT3/041 Q86a