HomeMy WebLinkAboutC-2329 - Right of Entry Agreement for Mariners Mile Parking Lot1
RIGHT -OF -ENTRY AGREEMENT
5D C
THIS AGREEMENT, made this /2 day of, ! "{ ,,,k , 1982, by
and between MARGARET E. MC KINLEY OSER, individually and as
Trustee of the MARGARET E. OSER Trust established October 11,
1977, (hereinafter "OWNER "), and THE CITY OF NEWPORT BEACH, a
Municipal Corporation, (hereinafter "CITY ") is made with
reference to the following facts, the materiality and existance
of which is stipulated and agreed by the parties:
A. "CITY" has undertaken to construct a municipal
parking lot on a one -acre parcel of property east of Tustin
Avenue and north of Pacific Coast Highway;
B. "CITY ", in furtherance of this project, has
purchased from "OWNER" certain real property which fronts on
Tustin Avenue and which will serve as access to the proposed
municipal parking lot;
C. "CITY ", as a condition of its purchase of the pro-
perty fronting on Tustin Avenue, has agreed to construct certain
improvements for the benefit of property, located on Cliff Drive,
and held by "OWNER ", said improvements to include the construc-
tion of a sewer line from the boundary of the Cliff Drive proper-
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ty to Tustin Avenue, as well as a retaining wall along the
southerly boundary of the Cliff Drive property, all as set forth
in the Real Estate Purchase Agreement, a copy of which is attach-
ed hereto as Exhibit "A" and incorporated herein by reference;
D. "CITY" has called for and received bids for the
construction of the municipal lot, and access thereto, and will
be awarding the contract on or about March 8, 1982;
E. The improvements to be constructed by "CITY" for
the benefit of "OWNER" were to be installed during the construc-
tion of the municipal lot and access road thereto and this con-
struction will commence on or about March 22, 1982; and
F. In order to construct these improvements, "CITY"
must obtain the permission of "OWNER" to enter on certain real
property, the legal description of which property is set forth in
two documents, attached hereto as Exhibits "B" and "C" and incor-
porated herein by reference and hereinafter described as the
"PROPERTY ";
G. It is the intent of the parties, by execution of
this Agreement, to allow "CITY" to enter onto the property for
purposes of constructing public improvements in conjunction with
the construction of the municipal parking lot and access road
thereto; and
2
H. It is the further intent of the parties to this
agreement that the consent of "OWNER" as set forth herein shall
not constitute a waiver, in any way, or to any extent, of the
right to compensation for such property, or any of the activities
which occur thereon, or of any remedy authorized by law to secure
payment therefor.
NOW, THEREFORE, THE PARTIES AGREE as follows:
1. "OWNER" grants to "CITY ", and the employees,
agents, representatives and contractors thereof, to enter onto
the property, to construct public improvements thereon and to
engage in construction activities thereon.
2. "CITY ", in consideration of the permission of
"OWNER" as set forth herein shall construct the improvements for
the benefit of "OWNER" as previously agreed during the construc-
tion activities that are authorized by this agreement.
3. It is expressly understood that the permission of
"OWNER ", as set forth herein, does not constitute a waiver, in
any way, of any right to compensation for such property, or the
construction activities thereon or any waiver of any remedy
authorized by law to secure payment therefor;
4. Permission of "OWNER" as set forth herein is grant-
ed with the understanding that "CITY" will continue to negotiate
with "OWNER ", and any other person, if any there be having any
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right, title or interest in said property, to agree upon terms of
compensation for the purchase of that portion of property
described on Exhibit "A ", as well as compensation for the con-
struction activities which will occur on that portion of property
described in Exhibit "B ". "CITY" further agrees to promptly
commence emminent domain proceedings to have such compensation
determined in the event that the parties hereto cannot reach an
agreement.
5. The term of this agreement, with respect to the
construction activities and right -of -entry granted hereby, shall
be for a term of one year, or upon the conclusion of construction
activities, whichever shall first occur.
6. It is understood that "CITY" will pay to "OWNER ",
interest at the legal rate of seven percent (78) per annum, from
the date of this agreement, computed on the final compensation
for the property, as well as the construction activities
authorized hereby.
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Executed the day and year first above written.
"CITY"
CITY OF NEWPORT BEACH
Robert L. Wynn
City Manager
"OWNER"
Marga t E. McKinley Oser,Trtee
Of Margaret E. Oser Trust,
EstAblished October 11, 1977
(subject to the terms of Rider "A ")
APPROVED AS TO FORM
Robert H. Burnham
Assistant City Attorney
Attorney for City of Newport Beach
;s
Aubrey V. Bogle
Paul, Hastings, Janofsky & Walker
Attorney for Owner
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MARINERS MILE PARKING LOT
ACCESS ROAD
PROPERTY TO BE PURCHASED FROM OSER
LEGAL OESCRIPTIO-N
That portion of Lot A, Tract 919, in the City of Newport
Beach, County of Orange, State of California, as per map recorded in
Book 29, Pages 31, 32, 33, and 3"' of Miscellaneous Maps, Records of
said Orange County, described as follows:
Beginning at the most easterly corner of Lot 20,
Tract 1133, as per map recorded in Book; 36, Pages 14
and 15 of Miscellaneous i-iaps, Records of said Orange
County; these South 610 00' 30" East 57.10 feet
along the southeasterly prolongation of the north-
easterly line of said Lot 20 to the northwesterly
line of the land as described in Parcel 2 in the deed
to Katherine F. Ja'rosky and John Jay Jakosky, Jr.,
recorded in Book 9056, Page 693 of Official Records
in the Office of the Recorder of said Count;; thence
North 390 43' 30" East 21.84 feet along said north -
westerly line and along the rorthwcsterly line of the
land as described in Parcel 1 in the deed to the City
of He;,port Beach, recorder{ in Boo4; 11293, Page 786 of
said Official Records to a line parallel with and 21.46
feet northe =5terly,measured at right angles, from said
southeasterl%- prolongation of the northeasterly line
of Lot 20; thence forth 610 00' 30" West 37.74 feet
along said parallel line; thence South 760 30' 15"
vest 31.77 feet,more or less,to the Point of
3eginning.
Are;.: 7
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EXHIBIT "A"
MARINERS MILE PARKING LOT
ACCESS ROAD
TEMPORARY CONSTRUCTION EASEMuNT TO BE OBTAINED EP.Oi -I OSER
LEGAL DESCRIPTION
That portion of Lot A, Tract 919, in the City of Ne.iport
Beach, County of Orange, State of C.= .li;ornia, as per map recorded in
Book 29, Pages 31, 32, 33, and 34 of Miscellaneous Naps, Records of
said Orange County, described as follows:
Beginning at the most easterly corner of Lot 20,
Tract 1133, as per map recorded in Boor. 36, Pages 14
and 15 of Miscellaneous flaps; Records of said Orange
County; thence forth 390 43' 30" East 42.20 feet along
the southeasterly line of Lot 21, said Tract 1133, to
a line parallel with and 41.46 feet northeasterly,
measured at right angles, from the southeasterly pro-
longation of the northeasterly line of said Lot 20;
thence South 610 00' 30" East 57.10 feet along said
parallel line to the northwesterly line of the land as
described in Parcel 1 in the deed to the City of
flee; port Beech recorded in Book 11293, Page 766 of
Official Rec,rds of said County; thence South
390 43' 30" i:ast 20.36 feet along said northwesterly
line to a line parallel with and 21.46 feet northeast-
erly measured at right angles, from the southeasterly
crolongatica of the northeasterly line of Lot 20 of
said Tract 1133; thence North 610 00' 30" West 3734.
f-_et along lcast said parallel line; thence South
70 30' 15" ;lest 31.77 feet,more or less,to the Point
of Beginning.
"- 71 sq. ft.
ty
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Bench lWi"w'ing No_
EXHIBIT "B"
vicOKS OER"MtT'lli.-Hy
All
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RIDER "A"
The execution of this Right -of -Entry Agreement
by Mrs. Margaret E. Oser is subject to the attachment hereto
and incorporation herein of an Indemnification Agreement
properly executed by the City of Newport Beach.
The City of Newport Beach shall indemnify, defend and
hold harmless Margaret E. Oser and the Oser Family Trust from
and /or against any claims, loss, damage or injury that may arise
from, or in any way relate to, the activities of the City of
Newport Beach or any of its employees, representatives, agents or
contractors who are authorized, or carried on, by virtue of the
Right -Of -Entry Agreement, dated March 12, 1982.
Evelyn Hart
Mayor Pro Tem
APPROVED AS TO FORM
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Yy1 �_< �� :f >> C Ems,
City Attorne
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OFFICE OF THE CITY ATTORNEY
mot'
MAR 2 2 1982
By tha CITY COUNCIL
CITY OF NEWPORT RLACH
MEMORANDUM
C -C):3'-�q
Agenda Item No. F3(e)
March 17, 1982
To: Honorable Mayor & Members of the City Council
From: Robert H. Burnham - Assistant City Attorney
Re: Right -of -Entry to Oser Property
Mariners Mile Parking Lot
BACKGROUND
Margaret Oser has granted to the City of Newport Beach the right
to enter on cetain property owned by her for the purposes of
engaging in construction activities and installing public
improvements, all preliminary to completion of the Mariners Mile
Municipal Parking Lot. The only consideration required by Mrs.
Oser, is the execution of an Indemnity Agreement which protects
her from any harm or loss which may arise from activities of the
City of Newport Beach or its contractors during construction.
The Indemnity Agreement required is attached to this memo for
council review and, if appropriate, the City Council should grant
authority to the Mayor Pro Tem to sign the Indemnity Agreement.
RECOMMENDATION
Authorize, by appropriate motion and vote, the Mayor Pro Tem to
sign the Indemnity Agreement.
Concur:
Michael H. Miller Robert H. Burnham
City Attorney Assistant City Attorney
RIGHT -OF -ENTRY AGREEMENT
THIS AGREEMENT, made this i2 day of /�/. ,, , 1982, by
and between MARGARET E. MC KINLEY OSER, individually and as
Trustee of the MARGARET E. OSER Trust established October 11,
1977, (hereinafter "OWNER "), and THE CITY OF NEWPORT BEACH, a
Municipal Corporation, (hereinafter "CITY ") is made with
reference to the following facts, the materiality and existance
of which is stipulated and agreed by the parties:
A. "CITY" has undertaken to construct a municipal
parking lot on a one -acre parcel of property east of Tustin
Avenue and north of Pacific Coast Highway;
B. "CITY ", in furtherance of this project, has
purchased from "OWNER" certain real property which fronts on
Tustin Avenue and which will serve as access to the proposed
municipal parking lot;
C. "CITY ", as a condition of its purchase of the pro-
perty fronting on Tustin Avenue, has agreed to construct certain
improvements for the benefit of property, located on Cliff Drive,
and held by "OWNER ", said improvements to include the construc-
tion of a sewer line from the boundary of the Cliff Drive proper-
ty to Tustin Avenue, as well as a retaining wall along the
southerly boundary of the Cliff Drive property, all as set forth
in the Real Estate Purchase Agreement, a copy of which is attach-
ed hereto as Exhibit "A" and incorporated herein by reference;
D. "CITY" has called for and received bids for the
construction of the municipal lot, and access thereto, and will
be awarding the contract on or about March 8, 1982;
E. The improvements to be constructed by "CITY" for
the benefit of "OWNER" were to be installed during the construc-
tion of the municipal lot and access road thereto and this con-
struction will commence on or about March 22, 1982; and
F. In order to construct these improvements, "CITY"
must obtain the permission of "OWNER" to enter on certain real
property, the legal description of which property is set forth in
two documents, attached hereto as Exhibits "B" and "C" and incor-
porated herein by reference and hereinafter described as the
"PROPERTY ";
G. It is the intent of the parties, by execution of
this Agreement, to allow "CITY" to enter onto the property for
purposes of constructing public improvements in conjunction with
the construction of the municipal parking lot and access road
thereto; and
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H. it is the further intent of the parties to this
agreement that the consent of "OWNER" as set forth herein shall
not constitute a waiver, in any way, or to any extent, of the
right to compensation for such property, or any of the activities
which occur thereon, or of any remedy authorized by law to secure
payment therefor.
NOW, THEREFORE, THE PARTIES AGREE as follows:
1. "OWNER" grants to "CITY ", and the employees,
agents, representatives and contractors thereof, to enter onto
the property, to construct public improvements thereon and to
engage in construction activities thereon.
2. "CITY ", in consideration of the permission of
"OWNER" as set forth herein shall construct the improvements for
the benefit of "OWNER" as previously agreed during the construc-
tion activities that are authorized by this agreement.
3. It is expressly understood that the permission of
"OWNER ", as set forth herein, does not constitute a waiver, in
any way, of any right to compensation for such property, or the
construction activities thereon or any waiver of any remedy
authorized by law to secure payment therefor;
4. Permission of "OWNER" as set forth herein is grant-
' ed with the understanding that "CITY" will continue to negotiate
with "OWNER ", and any other person, if any there be having any
3
0 0
right, title or interest in said property, to agree upon terms of
compensation for the purchase of that portion of property
described on Exhibit "A ", as well as compensation for the con-
struction activities which will occur on that portion of property
described in Exhibit "B ". "CITY" further agrees to promptly
commence emminent domain proceedings to have such compensation
determined in the event that the parties hereto cannot reach an
agreement.
5. The term of this agreement, with respect to the
construction activities and right -of -entry granted hereby, shall
be for a term of one year, or upon the conclusion of construction
activities, whichever shall first occur.
6. It is understood that "CITY" will pay to "OWNER ",
interest at the legal rate of seven percent (7 %) per annum, from
the date of this agreement, computed on the final compensation
for the property, as well as the construction activities
authorized hereby.
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Executed the day and year first above written.
"CITY"
CITY OF NEWPORT BEACH
By:
Robert L. Wynn
City Manager
"OWNER"
Marga t E. McKinley Oser,Trystee
Of T% Margaret E. Oser Trust,
Established October 11, 1977
(subject to the terms of Rider "A ")
APPROVED AS TO FORM
Robert H. Burnham "M 177
Assistant City Attorney
Attorney for City of Newport Beach
Aubrey W. Bogle
Paul, Hastings, Janofsky & Walker
Attorney for Owner
5
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MARINERS MILE PARKIt:G LOT
ACCESS ROAD
PROPERTY TO BE PURCHASED FP.Oi.i QSEP, "
LEGAL DESCRIPTION
That portion of Lot A, Tract 919, in the City of Newport
Beach, County of Orange, State of California, as per map recorded in
Book 29, Pages 31, 32, 33, and 34 of Miscellaneous Maps, Records of
said Orange County, described as follows:
Beginning at the most easterly corner of Lot 20,
Tract 1133, as per map recorded in Boot: 36, Pages 14
and 15 of Miscellaneous ;•laps, Records of said Orange
County; thence South 610 00' 30" East 57.10 feet
along the southeasterly prolongation of the north-
easterly line of said Lot 2D to the northwesterly
line of the land as described in Parcel 2 in the deed
to Katherine F. Ja{cosky and John Jay Jakosky, Jr.,
recorded in Book 9056, Pane 693 of Official Records
in the Office of the Recorder of said County; thence
Korth 390 43' 30" East 21.84 feet along said north-
t:esterly lira and along the northviast.erly line of the
land as described in Parcel 1 in the decd to the City
of Newport Beach, recorded in Boo}: 11293, Page 786 of
said Official Records to a lin;: parallel r:ith and 21.6,6
feet northessterly,measured at right angles, from said
southeasterly prolongation of the northeasterly line
of Lot 20; thence Morth 610 00' 30" West 37.74 feet
along said parallel line; thence South 760 30' 15"
Vest 31.77 feet, more or less, to the Point of
3 .;inning.
Are ..'.65 sq. r:.
Refs -_- ity of ';e�;port Bcacii Drawing No.
EXHTBIT "A"
7
MARINERS MILE PARKING LOT
ACCESS ROAD
TEMPORARY CONSTPUCTION EASEMENT TO BE OBTAINED FROM OSER
LEGAL DESCRIPTIOi
That portion of Lot A, Tract 919, in the City of Newport
Beach, County of Orange, State of C•-lifornia, as per map recorded in
Book 29, Pages 31, 32, 33, and 34 oP Miscellaneous maps, Records of
said Orange, County, described as follows:
Beginning at the most easterly corner of Lot 20,
Tract 1133, as per map recorded in Book 36, Pages 14
and 15 of Miscellaneous daps;. Records of said Orange
County; thence North 300 43' 30" East 42.20 feet along
the southeasterly line of Lot 21, said Tract 1133, to
a line parallel with and 41.46 feet northeasterly,
measured at right angles, frog the southeasterly pro-
longation of the northeasterly line of said Lot 20;
thence South 610 00' 30" "East 57.10 feet along said
parallel line to the northwesterly line of the land as
described it Parcel 1 in the deed to the City of
Newport Beac^ recorded in Boo': 11293, Page 7BG of
Official Re --rds of said County; thence South
390 43' 30" biest 20.36 feet along said north,.- ;esterly
line to a line parallel with and 21.46 feet northeast-
erly measure_': at right angles, from the southeasterly
crelongatic^ of the northeasterly line of Lot 20 of
said Tract 1133; thence North 610 00' 30" West 37.74
=eet along i st said parallel line; thence South
7 0 30' 15" 'lest 31.77 feet, more or less, to the Point
o` Beginning.
IM:jd
EXHIBIT "B"
r.e;_ _
_- City of
ii= rr:i�ort
Cclfrh Iha:rii�� Nu. R /!f- ':;9 -1.
IM:jd
EXHIBIT "B"
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C17Y
RIDER "A"
7
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The execution of this Right -of -Entry Agreement
by Mrs. Margaret E. Oser is subject to the attachment hereto
and incorporation herein of an Indemnification Agreement
properly executed by the City of Newport Beach.
The City of Newport Beach shall indemnify, defend and
hold harmless Margaret E. Oser and the Oser Family Trust from
and /or against any claims, loss, damage or injury that may arise
from, or in any way relate to, the activities of the City of
Newport Beach or any of its employees, representatives, agents or
contractors who are authorized, or carried on, by virtue of the
Right -Of -Entry Agreement, dated March 12, 1982.
Evelyn Hart
Mayor Pro Tem
APPROVED AS TO FORM
City Attorney