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HomeMy WebLinkAboutContracts & Agreements_52-2005_CCv0001.pdf AGREEMENT FOR FUNDING POSSIBLE ACQUISITION OF PROPERTY This agreement for funding the possible acquisition of property ("Agreement") is made and entered into as of this 5h day of April, 2005, by and between Cliff Douglas, an individual, and the City of Redlands, a municipal corporation (the "City"), who are sometimes individually referred to as a"Party" and collectively as the"Parties,"with respect to the following: RECITALS A. Mr. Douglas is the owner of certain real property identified as Assessor's Parcel Numbers 0294-111-16, 17 and 18 in the Official Records of the County of San Bernardino, and which were created by Parcel Map No. 8226 approved by the County of San Bernardino on January 5, 1982. B. At the time of approval of Parcel Map No. 8226, Edgemont Drive was intended to provide the primary and sole public access to the lots created by Parcel Map No. 8226. C. In 1985, the City commenced processing of a subdivision map known as City of Redlands Tract Map No. 13103 which, upon approval of the final map, was intended to facilitate the extension of Edgemont Drive to Parcel Map No. 8226 for the provision of public access. D. Litigation subsequently ensued over the City's consideration of Tract No. 13103, and no final map was approved by the City for that tract. Rather, the tract was approved in a form determined appropriate by the Court. djinkacqaisition agreement E. Subsequent to the litigation and approval of Tract No. 13103 by the Court, the Parties became aware that the Court's approval of Tract No. 13103 did not coincide with the Parties' intention that public access be provided to Parcel Map No. 8226 by Edgemont Drive. F. It is the continued desire of the Parties that Edgemont Drive provide public access to the lots created by Parcel Map 8226. However, as a result of the Court's approval of Tract 13103, a small portion of private property prevents such public access and prohibits utilities from being delivered to the lots created in Parcel Map No. 8226. G. To further the City's intent of providing public access to the lots created by Parcel Map No. 8226, to facilitate the provision of utilities to the lots created by Parcel Map 8226, to meet the General Plan goals of the City to provide necessary housing to its citizens, and to avoid threatened litigation by the owner of the lots created by Parcel Map No. 8226, the City has undertaken efforts to acquire the necessary private property described in more detail in Exhibit "A," which is attached hereto and incorporated herein by this reference (hereinafter the "Subject Property"), which is presently prohibiting such City actions from taking place. Now, therefore, in consideration of the mutual provisions contained herein, and for such other good and valuable consideration, the receipt of which is hereby acknowledged, Cliff Douglas and the City of Redlands agree as follows: (tira"acquigition agreement AGREEMENT Section 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. _Section 2. Acquisition Costs. Mr. Douglas shall be responsible for reimbursing the City for the costs of acquiring the Subject Property (the "Reimbursement"). The amount of the Reimbursement shall include all reasonable out-of-pocket costs and expenses incurred by the City in connection with the acquisition of the Subject Property, including, without limitation, the purchase price for the Subject Property, appraisal costs, title and escrow fees and expenses, and, if necessary, court costs and deposits, attorneys' fees and litigation expenses (collectively, the "Acquisition Costs"). a. Deposit, Performance Bond. Within ten (10) days after the date of this Agreement, Mr. Douglas shall deliver his check in the sum of Ten Thousand Dollars ($10,000.00) (the "Deposit") to the City, to be used by the City as and when the Acquisition Costs are incurred. In addition to the Deposit, the City may require Mr. Douglas to provide to the City a faithful performance bond or a letter of credit in a form approved by the City, in an amount determined by the City to assure performance of Mr. Douglas' reimbursement obligations under this Agreement. b. Additional Deposit Funds. In the event that payments or withdrawals from the Deposit posted by Mr. Douglas cause the amount of such Deposit to, at any time, be reduced to a sum less than Two Thousand Dollars ($2,000), Mr. Douglas may be required by the City to djm\acquisifion agreement 3 provide additional funds in order to replenish the original amount of the Deposit, provided that such funds are reasonably determined by the City to be necessary to complete the acquisition of the Subject Property. Mr. Douglas shall deposit such additional funds with the City within ten (10) days following the date of the City's written request for same. C. FailuretoMaintain Deposit. In the event that Mr. Douglas fails to deposit additional funds with the City as and when required under this Section 2, the City may, without liability to Mr. Douglas, elect to suspend all efforts in connection with the acquisition of the Subject Property. Section 3. Appraisal of Subject Property. The Parties acknowledge that in order to proceed with the acquisition of the Subject Property, the City must comply with certain statutory requirements, including, without limitation, making a purchase offer to the owner of the Subject Property before commencing negotiations with such owner in accordance with Section 7267.2 of the Government Code. The City shall retain an appraiser to make a fair market value appraisal of the Subject Property in accordance with instructions provided by the City. The appraiser shall be certified by the State of California and be a Member of the Appraisal Institute (MAI). The sum offered to the owner of the Subject Property shall be in the amount established as just compensation by the fair market value appraisal. Section 4. Resolution of Necessity. The Parties acknowledge that the City cannot file an eminent domain action until the City Council, in the exercise of its sole discretion, has adopted a resolution of necessity pursuant to the provisions of the Eminent Domain Law, after giving the djm',acquisition agreement 4 owner of the Subject Property the right to be heard in opposition to the proposed adoption of such resolution. a. Condition to City Action. Mr. Douglas acknowledges that the City may, after the hearing on the proposal to adopt a resolution of necessity, exercise its discretion by refusing to adopt such a resolution, and that the City cannot make an irrevocable commitment to acquire the Subject Property by eminent domain unless and until a resolution of necessity is adopted. b. City's Best Efforts. Mr. Douglas further acknowledges that, until such time as the City Council has exercised its discretion, after a hearing on the proposal to adopt a resolution of necessity, any references by the City staff to the acquisition of the Subject Property by eminent domain shall be considered representations by the City staff to use its best efforts to acquire the Subject Property in accordance with law. Section 5. Disputes Regarding, Fair Value. The City agrees to use its best efforts to settle any dispute over the amount of compensation to be paid for the Subject Property pursuant to this Agreement for an amount as close as possible to what the City considers to be just compensation. In no event shall such settlement be less than what is determined to be the fair market value of the Subject Property, together with other legally compensable and reasonably probable damages, if any. a. Consultation with Mr. Douglas. In the event that the City proposes to make an offer to acquire the Subject Property in an amount that is higher than the probable amount of just djiWacquisifion agreement 5 compensation determined by the appraiser, or in the event that the owner of the Subject Property makes a demand to sell such property for an amount that is higher than the probable amount of just compensation determined by the appraiser, the City shall provide written notice to Mr. Douglas of any such proposed offer or demand, and shall in good faith consult thereon with Mr. Douglas before the City makes such an offer or responds to such a demand. b. Settlement by Compromise. Mr. Douglas acknowledges that the City may, in the exercise of its sole, reasonable and good faith discretion, settle any dispute over the fair market value of the Subject Property between the appraised just compensation and the amount demanded by the owner of the Subject Property by way of a compromise without the consent of Mr. Douglas, recognizing the risks and uncertainties associated with litigation to make such a determination. Section 6. Selection of Counsel and Consultants. The City shall have control over the selection of attorneys, appraisers and other expert witnesses and consultants as may be required for an eminent domain action, and the Parties further acknowledge that the City shall maintain control over the conduct of any eminent domain action as well as the ultimate settlement of such an action, including the amount of just compensation paid for the Subject Property. Section 7. Accounting of Expenses. Upon the City's acquiring title to the Subject Property pursuant to grant deed from the owner thereof or by final judicial order condemning the Subject Property, the City shall immediately provide Mr. Douglas with an accounting of all of the djrn'acquisition agreement 6 Acquisition Costs incurred by the City in connection with such acquisition, and shall notify Mr. Douglas of the amount of the Reimbursement determined pursuant to Section 2 above. a. Pgyment of Balance of Ex-perases. If the amount of the Reimbursement exceeds the total amount of the cash deposits posted with the City by Mr. Douglas for acquisition of the Subject Property, Mr. Douglas shall tender the remaining sum due within twenty (20) working days after its receipt of the City's written demand therefor. b. Reimbursement/Release of Securities. If the amount of the Reimbursement is less that the total amount of the cash deposits posted with the City by Mr. Douglas for acquisition of the Subject Property, the City shall reimburse such excess deposit funds to Mr. Douglas (and exonerate all relevant bonds or letters of credit posted by Mr. Douglas) within ten (10) working days after the date of the accounting. Section 8. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by overnight mail (such as Federal Express) or by registered or certified mail, postage prepaid, return receipt required, or sent by facsimile, and shall be effective upon receipt at the address set forth below: MR. DOUGLAS CITY OF REDLANDS Cliff Douglas Robert Dalquest, Principal Planner P.O. Box 2729 Community Development Department 18511 Via De Las Flores (Private delivery) City of Redlands Rancho Santa Fe, CA 92067 P.O. Box 3005 Redlands CA 92373 djm\acquisition agreement 7 Section 9. Miscellaneous. a. Advice of Counsel. The Parties acknowledge that in entering into and executing this Agreement, they have had the opportunity to seek and receive independent advice and counsel as to their respective legal rights and obligations. b. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties concerning the subject matter herein, and supersedes any and all prior or contemporaneous agreements or understandings between them. The City and Mr. Douglas each declare and represent that no promise, representation or agreement beyond those expressly contained in this Agreement has been made to induce them to execute this Agreement. C. Attorneys' Fees. In the event that any proceedings are initiated to enforce or interpret the provisions of this Agreement, the prevailing Party in such proceedings shall be entitled to recover from the losing party all costs incurred in connection therewith, including court costs and reasonable attorneys' fees, including fees for in-house counsel of any Party at rates prevailing in San Bernardino County. d. California Law. This Agreement shall be governed by and interpreted under the laws of the State of California, and shall be construed as if it were drafted by all Parties. 8 dpi,,acquisition agreement IN WITNESS WHEREOF,the Parties hereto have executed this Agreement as of the day and year written above, CITY OF REDLANDS r Gilberto Gil; Mayor ro Tem ATTEST: Cit lcrk,Lorri9 c y r CLIFF DOUGLAS z djt&acquisition agreement s ami P.O.U. N.E. Comer of west one-half of the N.E. one-quarter of the Exhibit "A" Northeast one-quarter of sec. 11, US,R3W,SBBM Parcel Map 8226 PMB 91/25-26 Parcel N 89037'32'0'E 4 -19 200..11 2 T.P.O.B. Scale: 1" 10' !r NA4t � 0 00 ale `c' 0 o z Area of Description Basis 0 B f bearing being west line o the f Parcel 4 Parcel Map 8226 PMB 91/25-2 being S 0022'28"E. East Right-Of-Way 21.83 of Edgemont Drive S 89037'32"W SW Corner Parcel Map Lot 8 8226 MB 225 Pg. 69-72 CARSON LYNN STORER 3913 (P Carson L. Storer, P.L.S. 3913 Of CA Expiration Date: June 30, 2006 AN EASEMENT FOR HIGHWAY AND ROADWAY AND PUBLIC UTILITIES TRANSMISSION OVER AND ACROSS AND UNDER THE FOLLOWING-DESCRIBED PROPERTY: A PORTION OF THE WEST ONE-HALF OF THE NORTHEAST ONE- QUARTER OF THE NORTHEAST ONE-QUARTER OF SECTION 11, TOWNSHIP 2 SOUTH, RANGE 3 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF REDLANDS, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID WEST ONE- HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SECTION 11, SAID CORNER ALSO BEING THE NORTHWESTERLY CORNER OF PARCEL MAP NO. 8226, AS PER PARCEL MAP BOOK 91, PAGES 25 AND 26, RECORDS OF SAID COUNTY; THENCE ALONG THE EAST LINE OF SAID WEST ONE-HALF SOUTH 0022'28" EAST 11.51 FEET TO THE TRUE POINT OF BEGINNING; SAID EAST LINE ALSO BEING THE WEST PARCEL BOUNDARY OF SAID PARCEL MAP NO. 8226; THENCE CONTINUING ALONG SAID EAST LINE SOUTH 0022'28" EAST 57.41 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL MAP NO. 8226; THENCE ON A LINE PERPENDICULAR TO SAID EAST LINE SOUTH 89037'32" WEST 21.83 FEET TO THE EASTERLY RIGHT-OF-WAY OF EDGEMONT DRIVE, 50 FEET WIDE, AS SHOWN ON AMENDED TRACT NO. 13103, RECORDED IN MAP BOOK 225, PAGES 69-72, RECORDS OF SAN BERNARDINO COUNTY; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY NORTH 01019'42" EAST 57.44 FEET; THENCE NORTH 89137'32" EAST 20.12 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGINNING. DESCRIBED AREA CONTAINS 1,204 SQUARE FEET. CARSON LYNN CARSON L. STORER, P.L.S. 3913 SORER EXPIRATION DATE: JUNE 30, 2006 3913 Or CA 1.