HomeMy WebLinkAboutCalavera Hills II LLC; 2002-08-14;AGREEMENT
AN AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND CALAVERA HILLS II, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY REGARDING THE ACQUISITION
OF CERTAIN EASEMENTS FOR STREET AND OTHER
PURPOSES AS REQUIRED FOR SUBDIVISION CT 00- Qz
This Agreement is made this @day of August, 2002 by and between the City
of Carlsbad, California, a municipal corporation (hereinafter called "City") and Calavera
Hills 11, LLC, a California Limited Liability Company (hereinafter called "Developer").
RECITALS
A. Developer is required as a condition of Resolution No. 2002-016 of City
Council of the City of Carlsbad, approving Carlsbad Tract 00-02 to dedicate and provide
certain improvements to wit:
B. The acquisition and development of College Boulevard Reach B and
Cannon Road Reach 3 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 Developer secure said easement and install
improvements thereon and in accordance with specifications of the City of Carlsbad.
D. Developer wishes to acquire by a negotiated purchase the required
easements for street and other purposes for the subdivision, and request that the City
assist in the acquisition up to and including the exercise of the City's power of eminent
domain if required.
E. Developer retained the services of a competent appraiser who
subsequently provided an estimate of the value of said easement to be acquired.
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E. This Agreement is authorized by and is entered into pursuant to Section
20.16.095 of the Carlsbad Municipal Code and Subdivision Map Act Section 66462.5
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 pay the costs of retaining a qualified attorney or
attorneys 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 Attorney.
2. Developer agrees to bear all expenses, costs, fees, and charges,
including attorneys', engineers, appraisers or other professional setvices 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 as-
sociated 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
MASTERSlFORMSlEASEMENTAC(1UISITION
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action in an expeditious manner for the purpose of completing same as soon as
reasonably possible in accordance with applicable laws.
4. Developer 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. Developer shall upon demand 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 real property necessary for the improvements and facilities and related easements
and comply with the legal procedures necessary therefor. The Developer shall be
responsible for the deposit of funds, posting of security, or payment of any costs
associated with the order of immediate possession. Funds for said payments shall be
deposited with the City by Developer prior to initiation of eminent domain 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 Developer.
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, Developer
shall post a cash security deposit with the City in the amount of one hundred ten
percent (110%) of the estimated value. The City may at its discretion, use this cash
security deposit to satisfy any legal obligations created by this agreement and
MASTERSlFORMSlEASEMENTACQUISITION
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to pay for any and all legal expenses required to acquire the easement through the
condemnation proceedings. Developer acknowledges that the cost of acquisition and
other legal obligations of Developer may substantially exceed the estimated value of the
easement 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 Subdivision Map Act Section
66462.5.
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Developer 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 Developer of any obligation hereunder.
Executed by Developer this 1 qdday of August, 2002
DEVELOPER:
Calavera Hills II, LLC, a California Limited
Liability Company
(sign here)
I su/
CITY OF CARLSBAD, a municipal
corporation of the State of California n
BY
GLENN PRUIM
for City Manager
"
(title and organization of signatory)
BY h (sign here)
fq B.
(title and organization of signatory)
(Proper notarial acknowledgment of execution by DEVELOPER must be attached)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution certified
by the secretary or assistant secretary under corporate seal empowering that officer to
bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
5 I MASTERSIFORMSIEASEMENTAC(1UISITION RN. cutom
1 }ss. 1 STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On June 18'h, 2002, before me, Carol L. Bond personally appeared Brian Milich
and Don Mitchell, exden& to be the
acknowled ed to
capacid and that by hkkrltheir signatur-on the instrument the perse or the
entity upon behalf of which the perso s) Wed, executed the instrument. L
NOTARY PUBUC.CALIFORNlA
McMiiiinCompanien
State of California )
) County of San Diego )
On, August 22, before me, Belinda R. Guzman, Notary Public, personally appeared Glenn
Pruim, personally known me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal
(This area for official notary seal)
Title or Type of Document Right-of-way Agreement CT 00-02
Date of Document 08-14-02 No. of Pages 5
Signer(s) other than named above Don Mitchell