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Home My WebLink AboutMINUTES - 05181993 - 1.44 _, A •�'- , - Contra TO: BOARD OF SUPERVISORS •' f ! `• -- `� Costa FROM: VICTOR J. . WESTMAN, COUNTY COUNSEL County DATE: May 18 1993 rq'covK SUBJECT: AGREEMENT CONCERNING OFF-SITE RIGHT-OF-WAY: SUBDIVISION 6610 SPECIFIC REQUEST (S) OR RECOMMENDATION.(S) & BACKGROUND AND JUSTIFICATION I. RECOMMENDED ACTION: APPROVE and AUTHORIZE execution of Agreement Concerning Off- site Right-of-Way . between County and Equity Research and 'Development Corporation ("Subdivider") . II. FINANCIAL IMPACT: There will be a savings to the County in that the .Subdivider will be required to pay for the costs of defending litigation which has been filed against the County. III . REASONS FOR RECOMMENDATIONS AND BACKGROUND: The Subdivider is subdividing certain real property located within the County, designated ' as Subdivision 6610 . As a condition of approval of such.subdivision, Subdivider will be required to construct or install certain off-site improvements and provide a road right-of-way for the extension of Sandmound Boulevard from its current terminus to the boundary of Subdivision 6610. Litigation has been filed (Barbieri v. County of Contra Costa, Contra Costa County Superior Court Case No. C93-00514) seeking to quiet title to certain property necessary for the extension of Sandmound Boulevard, which at one time was offered for dedication to the County ("proposed dedication area") . The Subdivider has requested that the foregoing litigation (hereinafter the "Lawsuit") be defended by or on behalf of the County to preserve any interest the County may have in the area offered for dedication. The Subdivider has agreed to pay CONTINUED ON ATTACHMENT: x YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE (S) : ACTION OF BOARD ON May 18, 1993 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Orig: County Counsel ATTESTED MAY 18 1993 cc: Public Works Department PHIL BATCHELOR, CLERK OF Attn: Mitch Avalon THE BOARD OF SUPERVISORS Paul _Gavey AND COUN Y ADMINISTRATOR BY , DEPUTY CONTACT: S. Anderson (646-2064) A all costs associated with the Lawsuit, as further specified in the Agreement. The County has made no representation of any kind relating to its interest or potential interest in the proposed dedication area. The Agreement is not intended to affect or alter any subsequent Agreement or requirements relating to the acquisition of off-site right-of-way. IV. CONSEQUENCES OF NEGATIVE ACTION: The County would be required to defend or otherwise resolve the lawsuit. s1a6\a:\barbieri.bdo 1 -44 AGREEMENT COPY � o (Concerning Off-Site Right-of-Way) I . PARTIES. Effective on May 18, 1993, the COUNTY OF CONTRA COSTA, referred to as the "County, " and Equity Research and Development Corporation, referred to as the "Subdivider, " agree as follows: 2. PURPOSE. The Subdivider is subdividing certain real property located within the County, designated as Subdivision 6610. As a condition of approval of such subdivision Subdivider will be required to construct or install certain off-site improvements and provide a road right-of-way for the extension of Sandmound Boulevard from its current terminus to the boundary of Subdivision 6610. 3. PENDING LITIGATION. Litigation has been filed (Barbieri v. County of Contra Costa, Contra Costa County Superior Court Case No. C93-00514) seeking to quiet title to certain property necessary for the extension of Sandmound Boulevard, which at one time was offered for dedication to the County ("proposed dedication area" ) . The Subdivider has requested that the foregoing litigation (hereinafter the "Lawsuit" ) be defended by or on behalf of the County to preserve any interest the County may have in the area offered for dedication. The Subdivider has agreed to pay all costs associated with the Lawsuit, as further specified below. The County_makes no representation of any kind relating to its interest or potential interest in the proposed dedication area. This agreement is not intended to affect or alter any subsequent Agreement or requirements relating to the acquisition of off-site right-of-way. 4. COSTS. Subdivider shall pay all of the costs relating to the Lawsuit and/or acquisition of the proposed dedication area, including but not limited to attorneys fees, costs of suit, appraisal fees and other litigation expenses incurred by the County or Subdivider, whether prior to trial, at trial or on appeal, the costs of any negotiated settlement or judgment 5. LEGAL SERVICES. The County Counsel's Office shall have supervision of the Lawsuit but the Subdivider's attorney shall perform all legal services relating to the Lawsuit, including but not limited to (a) all required legal appearances, (b) conducting the trial of said matter, and (c) handling any required post trial proceedings, including appeals. Any attorney retained by the Subdivider shall be associated as special counsel for the County, but the County shall not be responsible for payment of the fees or expenses charged by such attorney. The Subdivider's attorney shall promptly furnish a photocopy of all correspondence sent and received in connection with this action, and all discovery and papers filed in court. Notwithstanding the Subdivider's use of a private attorney, the County retains the right, in its sole discretion, at any time, to require that the County Counsel's Office resume exclusive handling of the legal proceedings. Any such request shall be made in writing to Subdivider's attorney and shall be effective immediately upon receipt by Subdivider's attorney. All services rendered by the County Counsel's Office will be charged to the Subdivider at .the rate of $80.00 per hour. Costs of suit, deposition fees, appraisal fees, telephone, fax, photocopy, clerical/secretarial service, mileage and other expenses are additional and will be charged to the Subdivider at actual cost. 2 6. OTHER SERVICES. The County may perform such other services as the County, in its sole discretion, deems necessary for the defense of this Lawsuit. These services may include, without limitation, negotiation and relocation assistance service provided by the Public Works Department (Real Property Division) and environmental review service provided by the Community Development Department. Such other services will be charged to the Subdivider at the actual charge-out rate. 7. DEPOSIT OF PRELIMINARY COSTS AND EXPENSES. At the time of executing this Agreement, the Subdivider shall deposit with the County the sum of $5,000 in cash, certified check or cashier's check, which sum shall cover the estimated costs and expenses (legal, right-of-way, etc. ) to be incurred by the County during the course of this litigation. If, at any time, the deposit just described is exhausted, or is insufficient to cover the above-described costs or expenses Incurred by the County, the County may notify the Subdivider in writing. Within 15 days of the date of such notice, the Subdivider shall deposit with the County the additional sum specified in the notice. Any portion of the deposit that is not used to cover the above-described costs or expenses incurred by the County, or to cover other items described in this Agreement, shall be refunded to the Subdivider. B. RECORDS. The County shall maintain accurate records of all services performed by the County and all costs or expenses incurred by the County. 9. HOLD HARMLESS. The Subdivider agrees to defend, indemnify, save, protect and hold harmless the County, its boards, officers, employees -and agents from and against any and all claims costs, expenses or liability arising directly or 3 indirectly from or connected with, the offer of dedication, any act or omission of the County relating to the offer of dedication, the Lawsuit, or the ultimate acquisition of the required right-of-way. 10. NOTICES. Any notices required or permitted by this Agreement or by law shall be in writing, shall be sent by certified mail, return receipt requested, and shall be addressed to the appropriate party at the following address: COUNTY SUBDIVIDER r County of Contra Costa Equity Research and Department of Public Works Development Corp. 255 Glacier Drive 1964 Westwood Blvd. Martinez, CA 94553 Suite 450 Attn: Engineering Services Los Angeles, CA 90025 Division With Copy To: Sharon L. Anderson Kevin D. Lally Deputy County Counsel Smith, Merrill & Peffer P.O. Box 69 Bishop Ranch Bsns. Park Martinez; CA 94553 Two Annabel Lane Ste. 200 P.O. Box 10 San Ramon, CA 94583-0010 Should either party to this Agreement subsequently change address, or otherwise desire to change the address listed in this section, that party shall notify the other party of the change of address by complying with the provisions of this section. Any notice required to be sent to the County Counsel's office shall be addressed as follows: County Counsel's Office 651 Pine Street, 9th Floor P.O. Box 69 Martinez, CA 94553 Attn: Sharon L. Anderson Deputy County Counsel 4 16:10 FROM SMITH,MERRILL&PEFFE I R TO 13104411e7e P.04 The County, delegates to the County Counsel or Public works Directort or their assignees, the authority to give the notices described herein as well as any other nittices authorized or required by law. 11. SEVE q`V. Should any provisioi. of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, such holding shall not a,,.fect tho remaining Provisions of this Agreement. C-QUINM Equity Research & Development Corp. County of Contra Costa The Wellington Group By BY Chair, Board R Supei-Wsors • Dennis L. Bass, as Agent ATTEST: Phil Batchelor, County By under Agency Agreement dated Administrator and Clerk of the Board of Supervisors February 4, 199i By _ ' Deputy, .tv.&V r COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: May 7, 1993 To: Phil Batchelor, County Administrator Attn: Linda Bulkley, Management Analyst From: victor J. Westman, County Counsel_ By: Sharon L. Anderson, Deputy County Counsel Re: AGREEMENT CONCERNING OFF-SITE RIGHT-OF-WAY Please place the following item on the May 18, 1993 Board Agenda: �— "APPROVE and AUTHORIZE Board Chair to execute Agreement Concerning Off-Site Right-Of-Way with Equity Research and Development Corporation in connection with Subdivision 6610 . " Attached is the original Board order and- 15 copies. We have attached.. a copy of the contract to each copy of the Board Order. The original contract will follow -on Monday or Tuesday. Thank you. SLA:la