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Home My WebLink AboutCarlmart LP; 1990-10-15;AGREEMENT AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND CARLMART L.P. REGARDING THE ACQUISITION OF CERTAIN EASEMENTS FOR STREET AND OTHER PURPOSES AS REQUIRED FOR MINOR SUBDIVISION MS 800 FLORAL TRADE CENTER -This Agreement is made this 15thday of October, 1990 by and between the City of Carlsbad, California, a municipal corporation (hereinafter called llCity") and Carlmart, L.P., called I'Subdivider") . RECITALS A. Subdivider is, required as a condition set forth in the final approval letter dated November 13, 1989 of the City Council of the City of Carlsbad, approving the Subdivsion Improvement .' Agreement between the City of Carlsbad and Carlmart L.P. to dedicate and provide certain improvements to wit: B. The acquisition and development of Avenida Encinas 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 purposes for the subdivision, and request 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 Government Code. NOW, THEREFORE, in consideration of the mutual covenants Agreements\AG-3.frm Rev. 10/05/90 - rl -2 - 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 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 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 attorneysl, 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 Agreements\AG-3.frm Rev. 10/05/90 -3 - 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 upon demand 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 of immediate possession for the real property necessary for the improvements and facilities and related easements and comply with the legal procedures necessarytherefor. The Subdivider 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 Subdivider prior to initiation of eminent domain proceedings. 7. City retains the right to assume primary responsibility for the subject ligation 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 AgreementslAG-3.frm Rev. 10/05/90 . .- r4 -4 - 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 agrees that any failure by the City to comply /// /// /// /// /// /// /// /// /// AgreementslAG-3.frm Rev. 10/05/90 P .-- -. -5 - 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. Executed by Subdivider this 15th day of October , 19 90 . SUBDIVIDER: CITY OF CARLSBAD, a municipal corporation of the State of California Carlmart. L.P. (Name of Subdivider) pment Company, eth AI Ecke, Assisiant Secretary (Proper notarial acknowledgement of execution by SUBDIVIDERmust 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: VINCENT F. BIONDO, JR. City Attorney yj /h--p- / By: Deputy City Attorney Agreemnts\AG-3.frm Rev. 10/05/90 STATE OF CALIFOR COUNTY OF ..~ ~~~~ _an-piego - YY 1 I Iss. t On-. OCtPb3YYl5 ,~-- 199P_~ ~~~ ~~~~ .~~, before me, the undersigned, a Notary Public in and for satd State, personally appeared- ~~Chl-iS.to~~h.~r~~C_~I C&L&i-n--- .~~~~~ -~---and ~_ .~jpgb&llf~ : EC k$ _~~ -~~~~ ~~~~, personally known to mej6jPl/oJed)6/n~/iil$,&& aomwv9%v~ e to be the persons who executed the within instrument as---- - ~ ~ ~~~~~~~~_~ .~~ yiCf%-- President and-A umt~-Secretary, on behalf of-~~~~~~.-..~~~- ~.Carlta~s~-De~~-~pm_ent ~~- - Company.+ -_____ the corporation therein named, and acknowledged to me that said corporation executed the within instrument pursuant to its by- lawsor a resolutionof its boardof directorssaidcorporation being known to me to be one of the partners of _~~~_ ._~_~_ . Carlmart, pITPLpm the partnership that executed the within instrument, and ack- nowledged to me that such corporation executed the same as such oartner and that such partnershio executed the same. (This area for official notarial seal)