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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- 4 i ��� i � C ,ti ,� ti 1 N W V ` Y ; N � r�i � 1 \� �' N � r V �: N C .� ` 5+ ty R �' � � r � w M 1J Y+ �� � G W t� rn N N . N N N \., N }+ W `j (� i � w a ro � .�:, T �� w � � w ai 1 �,�( v rn � � �� rNi .yc � � C) � W U a U �1 ..: ' �, �H 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 3 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 (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. 4 E 0 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 5 r 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 ..c5 sq. '. ity of "; '4 :'ort Bcaeh Drar,ing No. R/"- 5139.1 I,M: j 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 Its: jd Bench lWi"w'ing No_ EXHIBIT "B" vicOKS OER"MtT'lli.-Hy All Zyn oil 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 i Yy1 �_< �� :f >> C Ems, City Attorne i ! 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 2 Y 0 • 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. 4 0 0 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 •( 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" X7 l /iii% 71 fO' sc '' �:z n ,. PC .0 0 4 2 Ay C17Y RIDER "A" 7 i 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