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18 19. At this point, it provides that the developer shall negotiate to acquire the property and if the developer is unable to do so, the City may use its power of eminent domain to acquire the property. What that provides, however, is if the City chooses not to do that, then the conditions gets waived. The question is, if the City waives that, what is the effect. The effect is that the project could not go forward due to the lack of a public right of way. Mr. Tarver wanted to remove a potential of a conflict of interest between the City and the developer. It was not clear to Mr. Tarver what happens if the City doesn't execute its option. Ms. Mohr stated that the condition as written does provide for the highest level of protection for fair treatment for the Irbys. If the eminent domain action falls to the City, the City is required to pay fair market value. Her concern is that if the City does not retain the eminent domain option and the developer is not successful in his negotiations, then a neighboring property owner is in essence given veto power over the adjoining property, which she believes is unfair to Kaufman and Broad. She feels the developer can offer whatever value they are willing to agree to, which could exceed what an appraiser would say is fair market value, which is the limit to which the City could offer payment. At this point, it would appear that the Irby's would get a greater reimbursement for the property now than waiting to deal with the City. Mr. Tarver indicated it was not his intention to take away the City's right of eminent domain. But he feels this conditions puts the City in the middle of the process. Ms. Mohr stated the City is not "in the middle", it is "back- up". Mr. Tarver indicated that was his question. He believed the City was getting in the middle by stating the condition as it is written in Condition 19. Mr. Roush said it is difficult to see how the project can be carried out if Council takes away the opportunity for the city to exercise eminent domain. If the property owner and Kaufman and Broad don't reach agreement then the City would have to exercise eminent domain in order to allow the project to go forward, which is what the vesting tentative map dictates. Mr. Tarver pointed out that if the condition stated that if the City doesn't choose to exercise eminent domain, then the project ceases to exist. Mr. Roush indicated that on one hand you have an approved vested tentative map and as part of the vesting tentative map you 1/5/93 18