HomeMy WebLinkAboutReso 1987-13294 RESOLUTION NO. 13294
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA
VISTA AND OSCAR C. DAVILA FOR PURCHASE OF EASEMENTS
RELATED TO TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECT
AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT
The City Council of the City of Chula Vista does hereby
resolve as follows:
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Chula Vista that that certain agreement between THE
CITY OF CHULA VISTA, a municipal corporation, and OSCAR Co DAVILA
for purchase of easements related to Telegraph Canyon Creek Flood
Control Project
dated the 22nd day of ~ctober , 1987, a copy Of which is
attached hereto and incorporated herein, the same as though fully
set forth herein be, and the same is hereby approved.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula Vista be, and he is hereby authorized and directed to
execute said agreement for and on behalf of the City of Chula
Vista.
Presented by Approved as to form by
J0h~n p. Li~/pi~/Director of Thomas J. H ity
Public Works/City Engineer Attorney
0374a
1 37
ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
JLA VISTA, CALIFORNIA, this 22ha day of October
19 87 , by the following vote, to--wit:
AYES: Councilmembers cox, Moore, Nader
NAYES: Counci I members None
ABSTAIN: Councilmembers ,, None
ABSENT: Counci ]members Malcolm, McCandllss
TE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 13294
,and that the same has not been amended or repealed.
OF
CHU Vi A
CC-660
RESOLUTION NO. 13294
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA
VISTA AND OSCAR C. DAVILA FOR PURCHASE OF EASEMENTS
RELATED TO TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECT
AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT
The City Council of the City of Chula Vista does hereby
resolve as follows:
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Chula Vista that that certain agreement between THE
CITY OF CHULA VISTA, a municipal corporation, and OSCAR C. DAVILA
for purchase of easements related to Telegraph Canyon Creek Flood
Control Project
dated the 22nd day of October , 1987, a copy of which is
attached hereto and incorporated herein, the same as though fully
set forth herein be, and the same is hereby approved.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula Vista be, and he is hereby authorized and directed to
execute said agreement for and on behalf of the City of Chula
Vista.
presented by Approved as to form by
John P Li~pit~ of T
· , Director h
Public Works/City Engineer Attorney
0374a
ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
C, ,JLA VISTA, CALIFORNIA, this 22nd doy of, October:
19 87 , by the following vote, to--wit:
AYES: Councilmembers cox, [~oore, I~ade~:
NAYES: Councilmembers None
ABSTAIN: Councilmembers ~qone
ABSENT: Counci 1 members MaZcolm, McCandlj_ss
/~~th~e*City~Chula Vista
. ,
ATTEST ~"';':"
S ,'E OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Vista, California,
DO HEREBY CERTIFY thor the obove and foregoing is 0 full, true and correct copy of
RESOLUTION N0. 13294
,ond fhat the some hos not been omendad or repealed
DATED
City Clerk
CITY OF
CHULA VISTA
CC-660
ff~uu~tDIrtG REQUESTED BY
0
WH~ ~9~ll~S,,UPl~.~rle~q~lV,v OF CALIFORNIA B
. ~%$, .INSTRUMENT TO: ] 9 ~ ~ ['~
f~ of Chula Vista
~.Sox 1~7 ]S~7 NOV IO PM 2:
~.: ,a Vis~, CA 92012
~SESSOR'S PARCEL NO. 618-010-11 ]
~0 ).SFER .TAX DUE SPACE ~OYE FOR RE~RDER~S USE ~LY
~- ~6 30o 2 ~ FOR' D~I~E PURPOSES
OS~R DAYILA
do(as) N~by grant to the City of Chula Vista, in ~e County o~ Sa~ Diego, SUre of
California, an easerant and rtght~f~ for, and the right to , const~ct, Ntntain,
operate, replace, remve, or enla~e a drain se~r and appu~enant~ struc~s in, u~n,
over and ac~ss that certain ~al p~perty situated tn the ~un~ qf San Diego, SM~ of
~ltfo~la, and ~ particularly ~scribed as follows:
~at portion of Pa~el 2 In the City of Chula Yis~, ~unty of San Diego, State
of. California according to Pa~el Map No. 990 filed tn the Office of ~e
Recorder of said ~unty on ~pte~er 14, 1972, mbre particularly described as
fol 1 ows:
Beginning at ~e souleast corner of said Parcel 2; ~e~e along the eas~rly
line of said Pa~el 2 North 18'21'00" West, a dls~nce of 14,50 feet to the
T~e Point of Beginning of the center line of a 25.00 foot wide drainage
ease~nt; thence along the center line of said'easement Sou~ 71'40*30' West, a'
ifstance of 318.52 feet to a point on a radial line of 120 feet ridtus curve,
the center of said curve bears North 18'19'30' West; thence wastar1' and
northerly along said curve though a central angle of ,15'~'07" an a~-[ength
of 31.42 feet; thence tangent to said curve South 86'40 37" West, a dts~nce
8.96 feet to ~e beginning of a tangent 120 feet radius curie concave
southerly; thence westerly and southerly along said curie ~Ugh a central
angle of 15'00'07' an a~-leng~ of 31.42 feet; thence Mngent to said curve
Sou~ 71'40'30' West, a dts~nce of 221,85 feet to the Intersection ~th the
westerly line of said Pa~el 2, according to said ~p No, 990. )e sides
the above described easerant shall be lengthened or shor~ned to teminate at
the easterly and ~sterly sides of said Pa~el 2.
Together with the right to enter upon and to pass and rapass over and along said
easement and right-of-way and to deposit tools, implements and'other materials thereon
by said City of Chula Vista, its officers, agents, and employees and by a contractor,
his agents and employees engaged by said City, whenever and wherever necessary for the
purposes above set forth. Notwithstanding anything to the contrary in the preceding
sentence, said City acknowledges and agrees that routine maintensnce (other tlsan such
routine maintenance that can be accomplished solely with access through the manhole
cover that is to be located on such easement property) of such drain sewer and appurtenant
structures is not necessary and that said City's rights set fortIs in' the preceding
sentence shall only be exercised in the event of serious or significant blockage or
damage to such drain sewer and appurtenant structures,' which are 'not currently foreseeable.
~r, Oscar Davila, retains the right to install' on said easement and right-of-way a
sign provided that such pole sign complies with applicabl~ laws and does not interfere
.~th or damage the box culvert and appurtenant structures of such drain sewer.
192
It is understood and agrccd by the parties hcrcto that the Grantee shall indcmnlry and hold
the Grantor harmless against all claims for damage or suits for loss including costs and
' rncy's fees, arising from injury to any pcrsonls) or property or life, caused by or
~lting from acts, or omissions by the Grantee ~ts successors or assigns, arising from the
construction, opcration or maintenance of the a?orcmentioned drain sewer or in using,
operating or traveling over the land within the hcreinbefore described Grant of Easement.
Notwithstanding anything to the contrary in tiffs Easement for Drainage Purposes, this
Easement for Drainage Purposes is subjcct to all of the provisions of the Agreement dated
Oc~:ober 22,1987 between Oscar Davila and Th: City oF Chula Vista and to the
extent ot any tncon~stenc~cs between this Easement for Drainag~ Purposes and such
Agreement, such Agreement shall control.
WITNESS my hand this 7 da~V~eT~, 1~9¢87.
Oscar Davila
State of California )
County of San Diego)
On this q_~L~ day of lqovember , in the year 1987, before me, the undersigned, a
Notary Public in and for Calilornla, personally appeared Oscar Davila, personally known to
me or proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to this instrument, and acknow ed that hc executed it.
WITNESS my hand and official sea~(uX~
AGREEMENT GRANTING TO THE CITY OF CHULA
TEMPORARY CONSTRUCTION EASEMENT AND PERMANENT EASEMENT
FOR D~AINAGE PI~POSES
This Agreement is executed effective October 22, 1987 between
OSCAR DAVILA, a resident of California ("Grantor"), and THE CITY
OF CHULAVlSTA, a municipality of the State of California
("Grantee"), who agree as followsm
1. Recital. This Agreement is made with reference to the
following recital of essential factsm
1.1. Grantee represents that the United States Army
Corps of Engineers and Grantee are engaged in the cooperative
Telegraph Canyon Creek Flood Control Project.
1.2. Grantor represents that he owns the Land (as
defined below), a portion of which is in the path of such
proposed Flood Control Project.
1.3. Both Grantor and Grantee desire to avoid litigation
regarding the value of the Temporary Easement (as defined
below) and the Permanent Easement (as defined below) for
drainage purposes necessary to accommodate the proposed Flood
Control Project.
2. Definitions. For purposes of this Agreement, the
following definitions shall apply~
2.1. "Cash Equivalent" shall mean a certified check, a
bank cashier's check, or other immediately available funds.
2.2. "Close of Escrow" shall mean the time when the
Permanent Easement (as defined below) is recorded with the
County Recorder for the County of San Diego.
2.3. "Easements" shall mean, collectively, the Permanent
Easement (as defined below) and the Temporary Easement (as
defined below). "Easement" shall mean either of the
Easements.
2.4. "Escrow" shall mean the escrow to be opened
pursuant to Paragraph 4 below.
2.5. "Escrow Holder" shall mean Ticor Title Insurance
Company of California.
2.6. "Grantee's Improvements" shall mean the drainage
box culvert and other improvements to be constructed by or for
Grantee on, below or within the Permanent Easement Property
(as defined below).
2.7. "Grantor's Improvements" shall mean Grantor's
improvements with respect to the Land (as defined below),
MSL6308.10A i
comprising a retail building, an office and warehouse
building, a parking lot and related improvements.
2.8. "Land" shall mean that certain real property
located in the City of Chula Vista, County of San Diego, State
of California, more particularly described on attached
Exhibit A.
2.9. "Permanent Easement" shall mean the permanent
easement with respect to the Permanent Easement Property (as
defined below) in the form of attached Exhibit B.
2.10. "Permanent Easement Property" shall mean the real
property described in =he Permanent Easement.
2.11. "Purchase Price" shall mean $82,000.00.
2.12. "Temporary Easement" shall mean the temporary
easement, in the form of attached Exhibit C.
2.13. "Temporary Easement Property" shall mean the real
property described in the Temporary Easement.
3. Purchase and Sale[ Condition Precedent. Subject to the
provisions of this Agreement, Grantor agrees to sell to Grantee,
and Grantee agrees to purchase from Grantor, the Easements for the
Purchase Price. Notwithstanding anything to the contrary in this
Agreement, this Agreement shall become null and void, and have no
~orce or effect, if the United States Army Corps of Engineers does
~ot, on or before October 30, 1987, award a contract for
construction of Grantee's Improvements. Grantee shall notify
Grantor in writing, on or before November 2, 1987, whether or not
the United States Army Corps of Engineers, on or before
October 30, 1987, awarded a contract for construction of Grantee's
Improvements.
4. Escrow. Promptly after the execution of this Agreement,
an escrow (the "Escrow") shall be opened with Escrow Holder, for
the consummation of the transactions under this Agreement. This
Agreement shall be used as escrow instructions, and Grantee and
Grantor shall also execute such further instructions as the Escrow
Holder may require, consistent with this Agreement. The Escrow
may be opened by the deposit with Escrow Holder of a copy of this
Agreement executed by Grantee and Grantor. Any inconsistency
between any such further escrow instructions and this Agreement
shall be resolved in a manner consistent with this Agreement which
shall prevail unless any such inconsistent provision is expressly
waived by Grantee and Grantor in a writing specifically referring
to the fact of such inconsistency and the desire to Waive it. If
any requirements relating to the duties of Escrow Holder in this
Agreement are not acceptable to Escrow Holder or if Escrow Holder
requires additional instructions, Grantee and Grantor shall make
such deletions, substitutions and additions in or to the escrow
~nstructions as Grantee and Grantor shall mutually approve and
~!hich do not materially change this Agreement or its intent.
MSL6308.10A 2
5. Purchase Price. The Purchase Price shall be paid as
follows= On or before the Close of Escrow, Grantee shall deposit
~ith Escrow Holder the sum of $82,000.00, plus any other sums
!j]ecessary to close the Escrow.
6. Grantor's Deliveries to Escrow Holder. Grantor shall
deliver to Escrow Holder on or prior to the Close of Escrow, for
disbursement as provided in this Agreement, the delivery of which
shall be a condition to the Close of Escrow, the Permanent
Easement, duly executed and acknowledged byGrantor.
7. Grantee's Deliveries. Grantee shall deliver to Escrow
Holder on or prior to the Close of Escrow, for disbursement as
provided in this Agreement, the delivery of which shall be a
condition to the Close of Escrow, (a) cash or Cash Equivalent in
the amount required of Grantee under this Agreement, and (b) a
letter in the form of attached Exhibit D, on the official
stationery of Grantee, executed by Grantee, which Grantor may, at
its election, rely upon in connection with Grantee's obtaining
certain benefits under Section 1033 of the Internal Revenue Code
of 1986, as amended.
8. Temporarv Easement. Grantor shall deliver to Grantee,
immediately upon the execution of this Agreement, the Temporary
Easement, executed by Grantor. The Temporary Easement shall not
be recorded.
9. Close of Escrow. The Close of Escrow shall occur on or
before November 10 1987. If the Close of Escrow does not occur on
3r before November 10, 1987, then Grantee or Grantor may at any
time thereafter give written notice to Escrow Holder to cancel the
Escrow and return all money and documents in Escrow to their
respective depositors. Escrow Holder shall comply with such
notice without further consent from any other party. Such
cancellation of Escrow shall not prejudice or limit any legal or
equitable rights Grantee and/or Grantor may have.
10. Costs. Grantee shall pay (a) Escrow Holder's fee, and
(b) documentary transfer taxes, and all other costs, associated
with recording the Permanent Easement.
11. Disbursements and Other Actions byEscrow Holder. On the
Close of Escrow, provided Escrow Holder has received all the
documents, instruments and funds set forth in Paragraphs 6 and 7
above, Escrow Holder shall promptly perform all of the following:
11.1. Recording. Cause the Permanent Easement, and any
other documents which Grantee and Grantor may mutually direct,
to be recorded with the County ReCorder for the County of San
Diego.
11.2. Disbursement to Grantor. Disburse to Grantor, or
in accordance with Grantor's instructions, all funds deposited
with Escrow Holder by Grantee in payment of the Purchase
Price.
MSL6308.10A 3
12. Survival of Covenants. Except as expressly provided to
the contrary elsewhere in this Agreement, the covenants,
-~presentations and warranties of this Agreement shall survive the
~ose of Escrow and the recordation and delivery of the Permanent
~asement.
13. Grantee's Representations and Warranties. The truth and
accuracy of the following shall constitute a condition to the
Close of Escrow and Grantee represents and warrants that the
following are true and accurate as of the date of this Agreement,
shall be true and accurate as of the Close of Escrow, and shall
survive the Close of Escrow~
13.1. On or before January 12, 1988, (a) construction
of, installation of and all work related to Grantee's
Improvements will be completed, (b) Grantee's Improvements
will provide adequate drainage for the Land and Grantor's
Improvements, and (c) Grantee's Improvements shall be
constructed and completed (including without limitation being
properly compacted with soil (to 95 percent of maximum dry
density with respect to the top 18 inches) such that the
Permanent Easement Property and the Temporary Easement
Property are brought to the grade as indicated on Grantor's
final approved grading plans with respect to the Land), in
such a manner that Grantor may, without performing any
additional work with respect to the Permanent Easement
Property, install on the Land (including without limitation
the Permanent Easement Property and the Temporary Easement
Property) the necessary base and paving for an asphalt parking
lot.
13.2. Grantee has the legal power, right and authority
to enter into this Agreement and to consummate the
transactions contemplated by this Agreement.
13.3. All requisite action has been taken by Grantee in
connection with entering into this Agreement and the
consummation of the transactions contemplated by this
Agreement.
13.4. The individual executing this Agreement on behalf
of Grantee has the legal power, right, and actual authority to
bind Grantee to the terms and conditions of this Agreement.
13.5. This Agreement and all documents required by this
Agreement to be executed byGrantee shall be valid, legally
binding obligations of and enforceable against Grantee in
accordance with their terms, except to the extent that the
enforceability of such terms may be affected by bankruptcy
laws and other laws affecting creditors' rights generally, and
the discretionary nature of equitable remedies which may be
sought to be enforced.
13.6. Construction of Grantee's Improvements shall be
done in accordance, and in compliance, with, and shall not
violate, any federal, state, county, municipal or other
governmental agency laws, ordinances, regulations, orders,
rules and requirements or any liens, encumbrances, adverse
MSL6308.10A 4
claims, easements, rights, flgn~e!~f-way, covenants,
conditions, restrictions or other matters that affect the
Land.
13.7. During construction of Grantee's Improvements,
there shall be reasonable access to and from the Land (other
than the Permanent Easement Property and the Temporary
Easement Property) and all of Grantor's Improvements.
13.8. Upon completion of Grantee's Improvements, there
shall be reasonable access to and from the Land and all of
Grantor's Improvements.
13.9. Grantee's Improvements shall be operated and
maintained in such a manner that (a) will not substantially
interfere with or adversely affect Grantor's parking lot,
(b) will provide adequate drainage for the Land and Grantor's
Improvements, and (c) will not substantially interfere with,
delay or adversely affect construction, installation or any
work related to Grantor's Improvements.
14. Grantor's Representations and Warranties. The truth and
accuracy of the following shall constitute a condition to the
Close of Escrow and Grantor represents and warrants that the
following are true and accurate as of the date of this Agreement,
shall be true and accurate as of the Close of Escrow, and shall
survive the Close of Escrow.
14.1. Grantor has the legal power, right and authority
to enter into this Agreement and to consummate the
transactions contemplated by this Agreement.
14.2. This Agreement and all documents required by this
Agreement to be executed by Grantor shall be valid, legally
binding obligations of and enforceable against Grantor in
accordance with their terms, except to the extent that the
enforceability of such terms may be affected by bankruptcy
laws and other laws affecting creditors' rights generally, and
the discretionary nature of equitable remedies which may be
sought to be enforced.
14.3. Grantor shall not interfere with Grantee's
construction of Grantee's Improvements.
15. Grantee's Inspection. Grantee acknowledges that it has
examined the Land to Grantee's satisfaction. Grantee further
acknowledges that Grantee is not purchasing in reliance on any
statements or representations by Grantor with respect to the
condition of the Land or otherwise, except as expressly set forth
in this Agreement.
16. Partial Invalidity. Each provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by
~,:aw. If any provision of this Agreement or the application of
~ch provision to any person or circumstance shall, to any extent,
~e invalid or unenforceable, the remainder of this Agreement, or
MSL6308.10A 5
the application of such provision to persons or circumstances
other then those as to which it is held invalid or unenforceable,
~hall not be affected by such invelidity or unenforceability,
/f~less such provision or such application of such provision is
essential to this Agreement.
17. Interpretation. Whenever the context so requires, all
words used in the singular shall be construed to have been used in
the plural (and vice verse), each gender shall be construed to
include any other genders, and the word "person' shall be
construed to include a natural person, e corporation, a firm, a
partnership, a Joint venture, a trust, an estate or any other
entity,
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
19. Further Assurances. Each party to this Agreement shall
execute all instruments and documents and take all actions as may
be reasonably required to effectuate ~his Agreement.
20. Venus and Jurisdiction. For purposes of venus and
Jurisdiction, this Agreement shall be deemed made and to be
performed in the City of San Diego, California.
21. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of
which together shall constitute one document.
22. Expenses. The prevailing party to this Agreement shall
be entitled to recover from the unsuccessful party to this
Agreement all costs, expenses and actual attorney's fees relating
to the enforcement or interpretation of, or any litigation or
arbitration relating to, this Agreement.
23. Modification in Writing. This Agreement may be modified
only by a writing executed by the party to this Agreement against
whom enforcement of such modification is sought.
24. Successors-in-Interest and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the successors-
in-interest and assigns of each party to this Agreement, but
nothing in this Paragraph shall create any rights enforceable by
any other persons not a party to this Agreement, unless such
rights are expressly granted in this Agreement to other
specifically identified persons.
25. Headings. The headings of the various Paragraphs of this
Agreement have been inserted only for convenience, and shall not
be deemed in any manner to modify or limit any of the provisions
of this Agreement, or be used in any manner in the interpretation
of this Agreement.
- 26. Time of Essence. Time and strict and punctual
~=Srforman~r~it'~ssence with respect to each provision of
this Agreement.
MSL6308.10A 6
· . 1934
27. Prior Understandings. This Agreement contains the entire
agreement between the par=ies to this Agreement with respect to
~he subject matter of this Agreement and supersedes all prior
~hderstandings, agreements, representations and warranties, if
any, with respect to such subject matter, including without
limitation the Agreement dated as of October 1, 1987 between
Grantor and Grantee.
28. Notices. All notices or'other con~nunications required or
permitted to be given to a party to this Agreement shall be in
writing and shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, to such
party at the following respective address=
Grantor~ ~r. Oscar Davila
Cal Stores
172 N. E1 Camins Real
Encinitas, CA 92024
with a copy to= Solomon, Ward, Seidenwurm & Smith
401 B Street, Suite 1200
San Diego, CA 92101
Attention= Michael S. Levinson
Granteez The City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 92010
Attentionz Mr. John P. Lippitt,
Director of Public Works/City
Engineer
Each such notice or other communication shall be deemed given,
delivered and received upon its actual receipt, except that if it
is mailed in accordance with this Paragraph, then it shall be
deemed given, delivered and received on the delivery date or the
date on which delivery is refused by the addressee, in either
case, in accordance with the United States Postal Service's return
receipt. Any party to this Agreement may give a notice of a
change of its address to the other party to this Agreement.
29. Waiver. No delay or omission by Grantor in the exercise
of any right or remedy shall impair such right or remedy or be'
construed as a waiver. A consent by Grantor to or approval by
Grantor of any act shall not be deemed to waive or render
unnecessary consent to or approval of any other or subsequent act.
Any waiver by Grantor of a default under this Agreement must be in
writing and shall not be a waiver of any ether default concerning
the same or any other provision of this Agreement.
30. Indemnification. Grantee shall indemnify Grantor against
all liabilities, costs, expenses, attorneys' fees and claims
(except to the extent caused by Grantor's negligent act, wilful
misconduct or breach of this Agreement), and all costs, expenses
~nd attorneys' fees incurred in the defense of any such claim and
~y action or proceeding brought on any such claim, (except to the
extent they result from Grantor's negligent acts, willful
MSL6308.10A 7
· ,'103S
~isconduct or breach under this Agreement) arising from any
activity, work or thing done, permitted or suffered by Grantee, or
any of Grantee's agents, employees, representatives, invitees,
~aests, licensees or contractors in the course of completing
Grantee's Improvements. If any action or proceeding is brought
against Grantor by reason of any such claim, Grantee upon notice
from Grantor shall defend such action or proceeding at Grantee's
sole cost by counsel satisfactory to Grantor.
31. LXQUIDATED DAMAGES. POR PURPOSES OF THIS PARAGRAPH,
'GRANTEE'S DELAY' SHALL MEAN ANY BREACH OF THE REPRESENTATXON SET
FORTH IN PARAC~APH 13.1 ABOVE, EXCEPT THAT GRANTEE'S DELAY SH~T.T. NOT
MEAN ANY BREACH OF SUCH REPRESENTATION THAT COULD NOT HAVE BEEN
REASONABLY DISCOVERED BY GRANTOR UPON COMPLETION OF GI~d~EEE'S
IMPROVEMENTS. FOR PURPOSES OF THIS PARAGEAPH, 'EXCESS ADVERSE WEATHER
DAY' SH~T.T. MEAN A DAY OF SEVERE ADVERSE WEATHER, ABOVE AND BEYOND
NORMAL STANDARDS, THAT PREVENTS WORE FOR 50 PERCENT OR MORE OF A WORE
DAY OP THE CONTRACTOR HIRED TO INST~T.T. AND COMPLETE GRANTEE'S
IMPROVEMENTS AND THAT DELAYS WORE CRITICAL TO THE TIMELY COMPLETION OF
GRANTEE'S IMPROVEMENTS. FOR PURPOSES OF THIS PARAGRAPH, THE NUMBER OF
DAYS OF GRANTEE'S DELAY SH~T.T. EQUAL (A) THE NUMBER OF DAYS FROM
JANUARY 12, 1988 UNTIL COMPLETION OF GRANTEE'S IMPROVEMENTS IN
ACCORDANCE WITH PARAGPa~PH 13.1 ABOVE, LESS (B) THE NUMBER OF EXCESS
ADVERSE WEATHER DAYS PRIOR TO COMPLETION OF GRANTEE 'S IMPROVEMENTS
(OTHER THAN EXCESS ADVERSE WEATHER DAYS THAT OCCUR AFTER JANUARY 12,
1988 THAT WOULD NOT RAVE AFFECTED COMPLETION OF GRANTEE'S IMPROVEMENTS
HAD THERE BEEN NO DELAY IN COMPLETION OF GRANTEE'S IMPROVEMENTS THAT
WAS NOT EXCUSED BY ANY EXCESS ADVERSE WEATHER DAYS). WITHIN
,~REE DAYS AFTER THE END OF EACH MO~TH DURING WHICH THERE IS AN
jCCURRENCE OF GRANTEE'S DELAY, GRANTEE SH~T.T, PAY TO GRANTOR, AS
LIQUIDATED DAMAGES AND AS GRANTOR'S SOLE REMEDY FOR SUCH GRANTEE'S
DELAY (AND IN LIEU OF GRANTOR'S MAINTAINING AGAINST GRANTEE AN ACTION
FOR INVERSE CONDEMNATION FOR UNREASONABLE DELAY IN INSTITUTING EMINENT
DOMAIN), FOR EACH DAY OF GRANTEE'S DELAY, CASH IN THE AMOUNT OF
$973.63. POR EXAMPLE, IF GRANTEE'S DELAY LASTS UNTIL FEBRUARY 7,
1988, THEN ON OR BEPORE FEBRUARY 3, 1988, GRANTEE SH~v.T. PAY TO GRANTOR
LIQUIDATED DAMAGES IN THE AMOUNT OF $19,472.68 (FOR THE 20 DAYS OF
GRANTEE'S DELAY DURING THE MONTH OF JANUARY, 1988) AND ON OR BEFORE
MARCH 3, 1988, GRANTEE SH~T.T. PAY TO GRANTOR LIQUIDATED DAMAGES IN THE
AMOUNT OF $6,815.41 (FOR THE SEVEN DAYS OF GRANTEE'S DELAY DURING THE
MONTH OF FEBRUARY, 1988). THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE
AND RECITE THAT SUCH SUMS ARE REASONABLE CONSIDERING ~T.T. OF THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE
RELATIONSHIP OF SUCH SUMS TO THE RANGE OF HARM TO GRANTOR THAT COULD
BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD
BE COSTLY OR INCONVENIENT. THE PARTI'ES TO THIS AGREEMENT ACKNOWLEDGE
THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE
ACTUAL DAMAGE THAT GRANTOR WOULD INCUR IF GRANTEE BREACHES SUCH
PARAGRAPH OF THIS AGREEMENT. IN PLACING THEIR INITIALS BELOW, TEE
PARTIES TO THIS AGREEMENT SPECIFIC~T.T.Y CONFIRM THE ACCURACY OF SUCH
FACTS AND THE FACT THAT EACH OF THE PARTIES TO THIS AGREEMENT WAS
HEPHESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
PAI~AGRAPH AT THE TIME THIS AGREEMENT WAS MADE. IF GRANTEE BREACHES
THIS AGREEMENT IN ANY MANNER OTHER THAN THE OCCURRENCE OF GRANTEE 'S
MSL6308.10A 8
DELAY, INCLUDING WITHOUT LIMITATION ANY BREACH OF THE REPRESENTATION
SET FORTH IN PARAGRAPH 13.1 ABOVE THAT CODT~D NOT HAVE BEEN REASONABLY
DISCOVERED BY GRANTOR gPON COMPT-RTION OF GRANTEE'S IMPROVFa~NTS, ~'~N
'~BA~TOR S~T.T- BE ENTITLED TO P~RSUE 3LNY LEGAL OR EQUITABLE P~J(EDY
,.~AXLABLE TO G~qa~TOR.
GRANTOR'S INITIALS GRANTEE'8 TNITLtT-q
THE CITY OF CHULA VISTA, a municipality of the
State of California
By$ 'as~:/'
Approved rm $
Chula Vista City Attorney
Oscar Davlla
MSL6308.10A 9
Exhibit A
Leqal Description
Parcel 2 in the City of Chula Vista, County of San Diego,
State of California, according to Map thereof No. 990 filed in the
Office of the County Recorder for the County of San Diego, State
of California on September 14, 1972.
MSL6308.10A 10
~HEH RECORDED. PLEASE MAZL '. :[g38 Sxhibit 9
:~,~IS ~NSTRUHENT TO:
!iClt~ Clerk
~tv ~f Chula Vtsta
aa Vts~, CA 92012
~SESSOR'S PARCEL NO. 618-010-11
NO ~SFER. TAX DUE SPACE ~OYE FOR RE~RDERaS USE ~LY
~ FOR' O~]~E PURPOSES
OS~R DAYILA
do(as) ~by grant to the CIty of Chula VIsta, tn ~e County of 5a~ Dtego~ S~te of
California. an ease~nt and rtght~f~ for, and the right to const~ctt mtntain,
Operate, replace, remve, or enla~e a drain se~r and appu~enant struc~s tnt u~n,
~over and ac~ss that certatn ~al p~perty situated In the ~un~ of San Diego, SM~ of
~ltfomfa, and m~ partkularly ~scrtbed as follows:
~at portton of Pa~el 2 tn the CIty of Chula Yts~, ~unty of San Nego, State
of California according to Pa~el ~ap No. 990 fi]ed tn the Offtce of ~e
Recorder of sald ~unty on ~pte~er 14, 1972, mbre particularly described as
fol 1 o~s:
Beginning at ~e sou~east corner of sa~d Parcel 2; ~e~e along the eas~rly
line of satd Pa~el 2 North 18'21'00" ~est, a dts~nce of 14.50 feet to the
T~e Potnt of Beginning of the center 11ne of a 25.00 foot wide dratnage
-~ssnt; thence along the center line of sa~d'easement South 71'40'30' ~est, a
Stance of 318.52 feet to a point on a radial line of 120 feet radius curve,
no~herly along safd curve though a central angle of 15'~'07"
of 31.42 feet; thence tangent to satd curve Sou~h 86'40'37" ~est, a dts~nce of
8.96 feet to ~e beginning of a tangent 120 feet radius cu~e concave
southerly; thence westerly and southerly along safd cu~e ~Ugh a central
angle of 15'00'07' an a~-leng~ of 31.42 feet; thence Mngent to said curve
Sou~ 71'40'30' ~est, a dts~nce of 221,85 feet to the Intersection ~th the
westerly l~ne of sald Pa~el 2, according to said ~p No. 990. ~e sides of
the above described easerant shall be lengthened or shorened to teminate at
the easterly and ~sterly stdes of said Pa~el 2.
Together with the right to enter upon and to pass and repass over and along said
easement and right-of-way and to deposit tools, implements and' other materials thereon
by said City of Chu!a Vista, its officers, agents, and employees and by a contractor,
iis agents and employees engaged by said City, whenever and wherever necessary for the
! urposes above set forth. Notwithstanding anything to the contrary in the preceding
entente, said City acknowledges and agrees that routine mainteuance (other than such
ourins maintenance Chat can be accomplished solely with access through the manhole
!cover that is to be located on such easement property) of such drain sewer and appuctenant
Structures is not necessary and that said City's rights set forth in the preceding
sentence shall only be exercised in the event of serious or significant blockage or
damage to such drain sewer and appurtenant structures,' which are 'not currently foreseeable.
P .... , Oscar Davila~ retains the right to install' on said easement and right-of-way a
~ ~ign provided that such pole sign complies with applicable laws and does no~ interfere
with or damage the box culvert and appurtenant structures of such drain sewer.
It is understood and agreed by the parties hcrcto that the Grantee shall indemnify and hold
t~* '~Grantor harmless against all claims for damage or suits for loss, including costs and
~?.ncy's fees, arising from injury to any person/s) or property or llfe, caused by or
c,.~alting from acts, or omissions by the Grantee Its successors or assleast arising from the
construction, operation or maintenance of the a~orementioned drain sewer or in using,
operating or traveling over the land within the hereinbefore described Grant of Easement.
Notwithstanding anything to the contrary in this Easement for Drainage Purposes, this
Easement for Drainage Purposes is subject to all of the provisions of the Agreement dated
October 22,1987 between Oscar Davila and The City of Chula Vista and to tile
extent el any mconszstenc~es between this Easement for Drainage Purposes and such
Agreement, such Agreement shall control.
WITNESS my hand this day of , 1987.
Oscar Davila
State of California )
)ss.
County of San Diego)
On this day of , in the year 1987, before me, the undersigned, a
Notary Public m and for CalXZ ornla, personally appeared Oscar Davila, personally known to
me or proved to me on the basis of satisfactory evidene,' to be the person whose name is
subserlbed to this instrument, and acknowledged that he executed it.
WITNESS my hand and official seal.
-, ~g4O Exhibit C
TEMPORARY GRANT OF CONSTRUCTION EASEMENT
The undersigned, as legal owner/owners of that real property shown on County
~f San Diego Assessor's Map as Assessment Parcel Number 618-010-11 ,
;s of do/does hereby grant to the City of Chula Vista,
an easement and right-of-way for the purpose of making the necessary cut or
fill slopes, and/or to place temporary construction forms and/or to alter
existing driveways, entry walks or other structures or obstructions upon and
across that portion of the above mentioned real property described as follows:'
That portion of Parcel 2 in the City of Chula Vista, County of San
Diego, State of California according to Parcel Map No. g90 filed in
the Office of the Recorder of said County on September 14, 1972, more
parti cul arly descri bed as fol 1 ows:
Beginning at the southeast corner of said Parcel 2; thence along the
easterly line of said Parcel 2 North 18'21'00" West, a distance of
14.50 feet to the True Point of Beginning of the center line of a 50
foot wide construction easement within said Parcel 2 per Map 990;
0
thence along the center line of said easement South 71°40'3 "West, a
distance of 318.52 feet to a point on a radial line of 120 feet
radius curve, the center of said curve bears North 18'19'30" West;
thence westerly and northerly along said curve through a central
h feet; thence tangent to
angle of 15'00'07" an arc-lengt of 31.42
said curve South 86'40'37" West, a distance of 8.96 feet to the
beginning of a tangent 120 feet raaius curve concave southerly;
thence westerly and southerly along said curve through a central
angle of 15'00'07" an arc-length of 31.42 feet; thence tangent to
said curve South 71°40'30" West, a distance of 221.85 feet to the
intersection with the westerly line of said Parcel 2, according to
said Map No. g90. The sides of the above described easement shall be
lengthened or shortened to terminate at the easterly, southerly, and
westerly sides of said Parcel 2.
together with the right to enter upon and to pass and repass over and along
said easement and right-of-way and to deposit tools, implements, and other
materials thereon by said City of Chula Vista, its officers, agents and
employees and by any contractor, his agents and employees engaged by said City
for the purposes above set forth.
The grantor further understands that the above described easement and
right-of-way shall terminate and become extinguished, and all the rights of
the grantee therein shall automatically revert to the grantor, its successors
or assigns, without any further act of either the grantee or of the grantor as
of the filing of the pertinent "Notice of Completion." Notwithstanding anything
to the contrary in this Temporary Grant of ConStruction Easement, this Temporary
Grant of Construction Easement is subject to all of the provisions of the Agreemen~
dated October 22., 1987 between Oscar Davila and The Ci[y of Chula Vista and
to the extent of any inconsistencies between this Temporary Grant of Construction
Easement and such Agreement, such Agreement shall control.
Oscar Davila Date
WPC 2838E
Exhibit D
October 22, 1987
Mr. Oscar C. Davila
172 N. E1 Camino Real
Encinitas, CA 92024
Dear Mr. Davila:
The City of Chula Vista, a municipality of the State of
California, hereby confirms to you that we have entered into the
Agreement Granting to the City of Chula Vista Temporary
Construction Easement and Permanent Easement for Drainage Purposes
dated as of October 22, 1987 under threat of, and in lieu of
initiating, condemnation proceedings against the real property
described below. This letter is being given to you pursuant to
Section 1033 of the Internal Revenue Code of 1986.
The real property involved in this transaction is legally
~escribed as follows:
Parcel 2 in the City of Chula ViSta, County of San
Diego, State Of California, according to Map
thereof No. 990 filed in the Office of the County
Recorder for the County of San Diego, State of
California on September 14, 1972.
Nothing contained in this letter should be construed as rendering
tax advice to you in connection with this transaction.
Very truly yours,
CITY OF CHULA VISTA
By: ~ ~ ~
APPROVED AS TO FORM:
Chula Vista City~tXrney
CHUIA VISTA
, Of:FI(DE OF THE cITY A'FFORNEY
October 22, 1987
Mr. Oscar C. Davila
172 N. E1 Camino Real
Encinitas, CA 92024
Dear Mr. Davila:
The City of Chula Vista, a municipality of the State of
California, hereby confirms to you that we have entered into the
Agreement Granting to the City of Chula Vista Temporary
Construction Easement and Permanent Easement for Drainage Purposes
dated as of October 22, 1987 under threat of, and in lieu of
initiating, condemnation proceedings against the real property
described below. This letter is being given to you pursuant to
Section 1033 of the Internal Revenue Code of 1986.
The real property involved in this transaction is legally
~escribed as follows:
Parcel 2 in the City of Chula Vis.ta, County of San
Diego, State of California., according to Map
thereof No. 990 filed in the Office of the County
Recorder for the County of San Diego, State of
California on September 14, 1972.
Nothing contained in this letter should be construed as rendering
tax advice to you in connection with this transaction.
Very truly yours,
CITY OF CHULA VISTA
By: ~ ~- ~,
APPROVED AS TO FORM:
Chula Vista City~t~rney '
276 FOURTH AVENUE/CHULA VISTA, CALIFORNIA 92010/(619) 691-5037
SOLOMON, WARD, SEIDENWURM ~ SMITH
~IE~BERT d. SOLOMON*
October 22, 1987
HAND DELIVERED
D. Richard Rudolf, Esq.
Assistant City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 92010
Re: Davila/City of Chula Vista
Dear Rich:
Enclosed are four execution versions of the Agreement, initialed
and signed by Oscar Davila.
Upon approval by the City Council on Thursday, October 22, 1987,
each of the four Agreements should be signed by the Chula Vista
City Attorney and initialed and signed by an appropriate
representative of the City of Chula Vista. Two versions should
then be returned to us as soon as possible.
SOLOMON, WARD, SEIDENWURM & SMITH
MSL/taC
Enclosures
CC: Mr. Oscar Co Davila (Enc.)
6308.10R
October 16, 1987
TO: The Honorable Mayor and City Council
FROM: E.R. Asmus, Assistant City Manager~
SUBJECT: Davila Agreement, Agenda Item No. 8
As of Friday, October 16, 1987 at 4:45 p.m., the contract for the Corps
of Engineers Flood Control Project had not been awarded. Therefore, the
agreement between the City and Mr. Davila, with the self-destruct date of
October 16, 1987, is no longer in force. The delay in award of the contract
is the result of a protest filed by one of the unsuccessful bidders of the
project and therefore the contract cannot be awarded until that issue is
resolved. As of this date, the protestor has indicated to the Public Works
Director that on Monday, October 12, 1987, he directed asle%ter to the Small Business
Administration, withdrawing his protest, but the Small Business Administration
was unable to locate the letter, if the letter had arrived.
Dependent upon where the situation stands as of Tuesday, October 20, staff
may be requesting the City Council to approve a new agreement establishing
a new self-destruct date in the agreement, as well as a new date later than
the Janua~ 1, 1988 date for liquidated damages. It is sta~f's position
that unless both dates can be moved forward, we would intend to immediately
move forward and initiate condemnation action to acquire the Broperty by
that process. If Mr. Davila and his attorney agree to moving the dates
forward, the actual condemnation action can be held in abeyance. Staff
will be prepared at the October 20 meeting to inform Council if a new agreement
is required or whether we will be proceeding with condemnation action.
ERA:mab
2,(y/fkTe CTty Cou,4cil'oP"
Dat /