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HomeMy WebLinkAboutCC Resolution 8969 (Merrydale Overcrossing Project)RESOLUTION NO. 8969 A RESOLUTION AUTHORIZING THE SIGNING OF RIGHT OF WAY AGREEMENTS WITH THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO FOR THE MERRYDALE OVERCROSSING PROJECT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: The Mayor and the City Clerk are hereby authorized to execute, on behalf of the City of San Rafael, the following agreements with the Roman Catholic Archbishop of San Francisco for: 1. "Contract for Purchase and Sale" 2. `Temporary Construction Easement Agreement". Copies of said license agreements are hereby attached and by this reference made a part of this resolution. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council held on Monday, the 21st day of June, 1993, by the following vote, to wit: AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None %. JE N M. LEONCIIaI, City Clerk uRiUINAI San Rafael, California , 1993 The Roman Catholic Archbishop of San Francisco; Grantor D- T.I CO.[ RTE. IR/W E.A.1 MRN 101 115740 PURCHASE AND SALE CONTRACT CITY OF SAN RAFAEL THIS CONTRACT IS MADE AND ENTERED INTO by and between the CITY OF SAN RAFAEL, a municipal corporation, "City" and THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation Sole, "Grantor." WITNESSETH: RECITALS: A. GRANTOR is the owner of that certain real property situate in the City of San Rafael, County of Marin, State of California and commonly referred to as Assessor Parcel No. 175-250-07 and as more particularly described in the Preliminary Title Report No. 147802, dated January 14, 1991 and any updates thereof prepared by First American Title Company of Marin, a copy of which is attached hereto as Exhibit "A." B . CITY desires to acquire and/or provide for the acquisition of a portion of GRANTOR'S property in fee simple interest described herein (attached hereto as Exhibit "B," Parcel No. 3) (the "Fee Take"), in connection with the construction of the Merrydale Overcrossing in the City of San Rafael (the "Project"). C. GRANTOR is willing to grant to CITY the Fee Take and CITY agrees to accept the Fee Take upon terms and conditions set forth below. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED as follows: The Grantor shall: (A) Convey the Fee Take by executing a Grant Deed, (Exhibit "B"), for Project Parcel No. 3, in Escrow No. 147802 at First American Title Company of Marin located at 600 Fifth Avenue, San Rafael, California. The Grant Deed shall be in a form reasonably acceptable to City and suitable for recordation upon the terms and conditions herein. 2. The City of San Rafael shall: (A) Pay the undersigned Grantor the sum of FIVE HUNDRED SIXTY THOUSAND ONE HUNDRED SIXTY SIX AND N0/100 DOLLARS ($560,166.00) for the Fee Take as conveyed by this Contract and by the document described in Paragraph 1A when title to the Fee Take vests in the City free and clear of all liens, encumbrances, assessments, easements and leases (recorded and/or unrecorded), and taxes, except: a. Taxes for the tax year in which this escrow closes shall be cleared and paid by Grantor in the manner required by Section 5086 of the Revenue and Taxation Code, if unpaid at the close of escrow. Taken from Caltrans For►n RW 09-04-04 5/28/93 b. Covenants, conditions, restrictions and reservations of record, or contained in the above referenced document. C. Easements or rights of way over said land for public or quasi -public utility or public street purposes, if any. (B) Pay all escrow and recording fees incurred in this transaction and, if title insurance is desired by the City, the premium charged therefor. (C) Have the authority to deduct and pay from the amount shown on Paragraph 2(A) above any amount necessary to satisfy any bond demands and delinquent taxes due in any year except the year in which this escrow closes, together with penalties and interest thereon, and/or delinquent and unpaid non delinquent assessments which have become a lien at the close of escrow. 3. Any or all moneys payable under this contract, up to and including the total amount of unpaid principal and interest on note(s) secured by mortgage(s) or deed(s) of trust, if any, and all other amounts due and payable in accordance with terms and conditions of said trust deed(s) or mortgage(s) shall, upon demand(s) be made payable to the mortgage(s) or beneficiary(s) entitled thereunder; said mortgage(s) or beneficiary(s) to furnish grantor with good and sufficient receipt showing said moneys credited against the indebtedness secured by said mortgage(s) or deed(s) of trust. 4. It is agreed and confirmed by the parties hereto that Grantor makes no warranties or representations concerning the physical condition of the lands being acquired or their uses, other than to state that to the best of Grantor's knowledge, information and belief, there are no material defects on the property. However, City acknowledges that there may be defects, whether natural or man made, on the lands being acquired about which neither party hereto has knowledge or information and City agrees to take the Fee Take in its "AS IS" physical condition and City hereby assumes the risk of the existence of any defects as to which Grantor has no actual knowledge or information. 5. It is agreed and confirmed by the parties hereto that notwithstanding other provisions in this contract, the right of possession and use of the subject property by the City, including the right to remove and dispose of improvements, shall commence on 'J w,Q, 26, 1993, or the close of escrow controlling this transaction, whichever occurs first, and that the amount shown in Paragraph 2(A) herein includes, but is not limited to, full payment for such possession and use, including damages, if any, from said date. 6. It is understood and agreed by and between the parties hereto that payment in Paragraph 2(A) above includes but is not limited to payment for the Storage Container, located on Grantor's property and partially within the take area as described in Exhibit "B," which is considered to be part of the realty and is being acquired by the City in this transaction. 7. It is agreed and confirmed by the parties hereto that any construction work associated with the Project located on the Fee Take shall be conducted by the City, its contractors, employees, agents and/or assigns between the hours of 7:30 AM through 5:30 PM Monday through Friday but not on Saturdays, Sundays or Holy Days so as not to interfere with cemetery activities on those days. 5/28/93 2 8. At no expense to Grantor and at the time of construction, City shall, at its sole expense, construct the improvements as illustrated in Exhibit "C," attached hereto and made a part hereof. Upon completion of construction of said improvements, the improvements within the limits of the Grantor's real property will be considered Grantor's responsibility and are to be maintained, repaired and operated as such by Grantor in accordance with and subject to the laws of the State of California and the rules and regulations of the City of San Rafael. The City will plant at its expense 15 each - 36 inch box size trees along the frontage of Grantor's property within the boundaries of the City's Fee Take and existing property as shown in Exhibit C. City agrees to consult with the Grantor regarding the type of trees to be planted and their approximate locations. It is understood and agreed to by the parties hereto that the City will be solely responsible for the planting and maintenance of said trees. 9. All work performed under this contract shall conform to all applicable building, fire and sanitary laws, ordinances, and regulations relating to such work, and shall be done in a good and workmanlike manner. All structures, improvements or other facilities, when removed, and relocated, or reconstructed by the City, shall be left in as good as condition as found. 10. Any notice or demand which either the Grantor or City desire to serve upon the other may be served either personally or by depositing the notice or demand in the United States Post Office, postage prepaid, addressed as follows: Grantor: The Roman Catholic Archbishop of San Francisco c/o Catholic Cemetery Office P.O. Box 1577 Colma, CA 94014 Charles P. Shea Cesari, Werner and Moriarty 360 Post Street, Suite 702 San Francisco, CA 94108 City: Lloyd Strom, Department of Public Works City of San Rafael P.O. Box 151560 San Rafael, CA 94915 Peter Franklin Goldfarb & Lipman 1 Montgomery Street Telesis Tower, 23rd Floor San Francisco, CA 94104 11. No Real Estate commission shall be paid by City or Grantor under this Contract. 12. Grantor warrants that there are no oral or written leases on all or any portion of the property exceeding a period of one month, and the Grantor further agree(s) to hold the City harmless and reimburse the City for any and all of its losses and expenses occasioned by reason of any lease of said property held by any tenant of Grantor for a period exceeding one month. 5/28/93 3 13. City shall protect, hold free and harmless and defend and indemnify Grantor including its agents and employees from all liability, penalties, costs, losses, damages, expenses, causes of action, claims of judgment (including attorneys fees) resulting from injury or death sustained by any person or damage to property of any kind which injury, death or damage arises directly or indirectly from the physical condition of the land, or from the construction of the project. City's aforesaid indemnity and save harmless agreement shall apply to any acts or omissions, willful misconduct or negligent conduct whether active or passive, on the part of The Roman Catholic Archbishop of San Francisco, or any of its agents or employees, or subcontractors, except that such agreement shall not be applicable to injury, death or damage to property arising from the sole negligence, or willful misconduct of The Roman Catholic Archbishop of San Francisco, or any of its agents, or employees. City covenants that it will fully comply with the laws, regulations and statutes with respect to safety, accident prevention, safety equipment and practices. City covenants that it will conduct inspections to determine if safe working conditions and equipment exist and will accept sole responsibility for providing a safe place to work for its employees and subcontractors and employees of City's subcontractors and material men and for the adequacy of and related use of all safety equipment. City agrees to indemnify and hold harmless The Roman Catholic Archbishop of San Francisco, including it agents and employees, from any claims, liability, losses, or death resulting therefrom and damages, or other losses, or causes alleged to have been caused by the violation or infraction of any law, order, regulation of statute relating to the safety of employees. City further agrees to hold harmless the Grantor from any and all claims for loss, damage, injury or liability of whatsoever nature and howsoever the same may be caused or may arise resulting directly or indirectly from the partial acquisition of Grantor's property by City for the Project, by the heirs of Marie L. Lucas whose rights and claim to Grantor's property are stated in that certain deed filed for record on March 8, 1880 in Book U of Deeds at Page 341, Marin County Records. City further agrees that it will name Grantor as a co-insured on any policy of liability insurance that it purchases in connection with the construction of the project, and further agrees that it will require the contractor, performing construction of the project, to name Grantor as a co-insured on the contractor's policy of liability insurance in connection with the construction of the project. 14. Grantor and City agree that the payment of the compensation amount shown in Paragraph 2(A) above shall constitute full compensation, including any damages and attorneys' fees to which Grantor might be entitled, for both the Fee Take referred to in this Contract and all rights of possession and use of Grantor's property based on the eminent domain action brought by City (Marin County Superior Court No. 149985) (the "Action"), including any rights to remove and dispose of improvements thereon, but excepting any interest which has accrued on the monies on deposit in connection with the Action. City agrees that it will dismiss with prejudice all claims against Grantor in the Action. Grantor agrees to waive any entitlement it may have to monies on deposit in connection with the Action, excepting therefrom any interest which has accrued on said deposit. Payment of said interest will be made to Grantor at close of the escrow controlling this transaction. 15. It is understood and agreed by the parties hereto that Grantor disputes the City's right to condemn its property and by signing this agreement the Grantor is in no way conceding the City's authority of eminent domain over Grantor's cemetery property. 16. The parties have herein set forth the whole of their agreement regarding the Fee Take and no amendment thereof can be made by either party, except pursuant to written 5/28/93 4 agreement signed by both parties hereto. The performance of this agreement constitutes the entire consideration for said document and shall relieve the City of all further obligation or claims on this account, or on account of the location, grade or construction of the proposed public improvement. 17. This Contract shall be construed under the laws of the State of California. THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation Sole By: ,A- Printed:!' 1%Printed: Attorney in Fact Date: CITY OF SAN RAFAEL Mayor / ATTEST: Clerk Date: &/� -�-/93 5/28/93 5 Form No. 1068.1 (Rcv.7/'90) Exhibit A to 11rclimin:up itcport 4S,S pMERIC-9 UK Prelim10 inary Report First American Title Insurance Company EXHIBIT A TA Preliminary Report (Rev. 1 1116182) First American Title ompany of Marin ❑ 10 SOUTH KNOLL ROAD P.O. BOX 611 MILL VALLEY, CA 94942 (415) 383-3343 ❑ 350 BON AIR CENTER SUITE 200 GREENBRAE, CA 94904 (415) 461-7570 ❑ 1701 NOVATO BOULEVARD SUITE 304 NOVATO, CA 94947 (415) 898-1665 600 FIFTH AVENUE P.O. BOX 151289 SAN RAFAEL, CA 94901 (415) 454-2312 FOR ESCROW INQUIRIES REPLY TO: Tay Kern, Escrow Officer PROPERTY ADDRESS: Mount Olivet Catholic Cemetery San Rafael, California Your No. Our Order No. 147802 TK SUPPLEMENTAL In response to the above referenced application fora policy of title insurance, this Company hereby reports that it is prepared to issue, orcause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insur- ance, a Binder or Commitment should be requested. I ' Dated as of. January 15 19 91 at 7:30 a.m. 1 " v Title Officer The form of policy of title insurance contemplated by this report is: TO BE DETERhIINEp Title to said estate or interest at the date hereof is vested in: THE FUM CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation sole The estate or interest in the land hereinafter described or referred to covered by this Report is: A FL'E At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said policy form would be as follows: Affiliated with First American Title Insurance Company 147802 Supplemental continued page 2 SUBJECT TO: 1. THE LIEN OF SUPPLEMENTAL TAXES ASSESSED PURSUANT TO CHAPTER 3.5 COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE -AND TAXATION CODE. 2. EASEMENTS: Existing roadway and utilities as are presently installed. 3. TERMS: Terms, Conditions and Provisions for reversion of title, as contained in the Deed from Marie L. Lucas, to J. S. Alemany, recorded March 8, 1880 in Book "U" of Deeds, at Page 341, Marin County Records. 4. RELINQUISHMENT: Release and relinquishment of any and all abutters rights including access rights appurtenant to grantors remaining property in and to the adjacent Highway 101, provided, however, that such remaining property shall abut upon and have access to said frontage -road which will be connected to the freeway only at such points as may be established by public authority, as contained in the deed from The Roman Catholic Archibishop of San Francisco, a corporation sole to the State of California, recorded June 14, 1956 in Book 1035 of Official Records, at Page 132, Marin County Records. 5. WAIVER: Waiver of any claims for any and all damages to grantor's remaining property contriguous to adjacent Highway 101, by reason of the location, construction, landscaping or maintenance of said Highway, as contained in the Deed referred to under Exception No. 6 above. 6. EASEMENTS: Easements, rights or interest arising out of: A) the sale or transfer of lots, blocks, plots or sections in Mount Olivet Cemetery or of'burial rights therein. B) the sale or transfer of crypts or vaults in any mausoleum, and of niches in any columbarium to be erected on the herein described land; and C) any interment in said land. 7. EASEMENTS: Easements over any of the unnamed streets, roads, alleys, walks, paths, parks or parkways shown on the map of said Mount Olivet Cemetery. B. RESTRICTIONS: Restrictions imposed by law regarding the sale and disposition of said land or a place within any mausoleum or columbarium erected thereon resulting from the use or dedication of said land for cemetery purposes. 9. AN FACTS, rights, titles, interests, easements, claims or encroachments that a correct survey of the herein described property might disclose. 147802 Supplemental cont ied page 3 NOTE: County of Marin and City of San Rafael taxes for the fiscal year 1990-91 have been paid in full in the amount of $96.98. Tax Bill No. 175-250-07 Tax Code Area 8-001 CHAIN OF TITLE: Title of the Vestees herein was acquired six months or more preceding the date hereof. DESCRIPTION All that certain real property situate in the City of San Rafael, County of Marin, State of California, described as follows: The lands described under Parcels Second and Eleveth in the Deed recorded - November 19, 1897 in Book 48 of Deeds, at Page 49, Marin County Records, and as set forth and delineated upon that certain map entitled, "Map of. Mount Olivet Cemetery Near San Rafael", filed for record on July 25, 1887 in Volume 1 of Maps, at Page 5, Marin County Records. EXCEPTING THEREFROM, the portions conveyed by the following Deeds: a) Deed from The Roman Catholic Archbishop of San Francisco, a corporation sole, to the State of California, recorded November 12, 1930 in Book 204 of Official Records, at Page 373, Marin County Records. B) Deed from The Roman Catholic Archbiship of San Francisco, a corporation sole, to the State of California, recorded June 30, 1939 in Book 3$2 of Official Records, at Page 264, Marin County Records. C) Deed from The Roman Catholic Archbishop of San Francisco, a corporation sole, to the State of California, recorded June 14, 1956 in Book 1035 of Official Records, at Page 132, Marin County Records. ALSO EXCEPTING THEREFROM any portions of said lands lying within the boundaries of the lands conveyed in the Deed from Marie L. Lucas to The County of Marin, recorded November 7, 1883 in Book "Z" of Deeds, at Page 252, Marin County Records. F FA (D ri m O h W j O m `< in IA �• Cb Q � CO � N L 0 5 IN w k�••i•''4 ION ,f 2±an , , �.. 5" 4� . .. y �jQy / t'l /� • Av OAf 04 No �L� l •_ rn ILO 03 co 010 -n � a _ '' •},I���•J �11 ,fid �� � ° co W p� x p R R 7 W` Oo W to ; n Yrlii• i:'�i: �= •_ 1� ;_ii i :��./ �lf\Y )�' .Z ('�Ini •� �T �HT7 i!�^'„1 1: � :� •�,:;f'� !iS ::: �.� .•tla!f.?: tri �:if i�►�I- • '4.+1.i'�.. -i'.._ ..__•li:..r,.il �:.+.Y :4:..1-1.>�-,� Hilo i,A::. ob' o� °`"�� RECORDING REQUESTED BY: City of San Rafael WHEN RECORDED RETURN TO: Jeanne L.eoncini, City Clerk City of San Rafael P.O. Box 151560 San Rafael, CA 94915 rwmw No. 147802TK APN: 175-250-07 (Portion) SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT DEED THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation Sole, hereby GRANT(S) to the CITY OF SAN RAFAEL, a municipal corporation, all that certain real property situate in the City of San Rafael, County of Marin, State of California described as follows: SEE EXHIBITS "A & B" ATTACHED HERETO AND MADE A PART HEREOF. DATED: THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO By Attach Acknowledgment Attorney in Fact EXHIBIT 'j� O N82'38'327W 49.25' O R=756.05' L=280.17' ,L=21'1 3'57" O R=181.00' L=8.41' A=2'39'41" O R=205.00' L=71.12' A=19'52'43" O S84'33'33" E 282.12' © N36'00'31"W 39.57' O N24'36'01"W 14.65' EXHIBIT A a� g PARCEL 3 SUN. WILSEY Q HAIL DWS. AY 355 LAKESIDE DRIVE, FOSTER CITY, CALIF. 94404 14151349-2151 Ck. WM EXHIBIT A FOR THE ACQUISITION Approved: FEE INTEREST ALONG MERRYDALE ROAD G.\ACAD\1729-06\EHG\PARCEl3.DWG IT OF INNING REV. 5-28-93 DWG. N0. OF 3 (REV.1) SCALE: 1"=50' DATE: 2-14-89 BK N0. PARCEL 3 REAL PROPERTY IN THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, A PORTION OF THE LANDS CONVEYED TO THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO BY DEED RECORDED NOVEMBER 19, 1897 IN BOOK 48 OF DEEDS AT PAGE 49 IN THE RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF SAID PARCEL WITH WESTERLY LINE OF THE PARCEL CONVEYED TO THE COUNTY OF - MARIN BY DOCUMENT RECORDED NOVEMBER 8, 1883 IN BOOK Z OF DEEDS AT PAGE 252 IN THE RECORDS OF SAID COUNTY; THENCE THROUGH THE FOL- LOWING NUMBERED COURSES: 1) N. 820 38' 32" W. ALONG THE NORTHERLY LINE OF THE FIRST SAID PARCEL 49.25 FEET TO THE BEGINNING OF A NON -TANGENT CURVE TO THE LEFT FROM WHICH THE RADIUS POINT LIES S. 100 03' 43" W. 756.05 FEET 2) ALONG SAID CURVE AND NORTHERLY LINE THROUGH A CENTRAL ANGLE OF 210 13' 57" AN ARC DISTANCE OF 280.17 FEET TO A POINT OF CUSP WITH A CURVE TO THE RIGHT FROM WHICH THE RADIUS POINT LIES S. 220 39' 29" W. 181.00 FEET 3) LEAVING SAID NORTHERLY LINE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 20 39' 41" AN ARC DISTANCE OF 8.41 FEET TO A CURVE TO THE LEFT WITH A RADIUS OF 205.00 FEET 4) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 190 52' 43" AN ARC DISTANCE OF 71.12 FEET 5) S. 840 33' 33" E. 282.12 FEET TO THE WESTERLY LINE OF THE LAST SAID PARCEL 6) N. 360 00' 31" W. ALONG SAID LINE 39.57 FEET 7) N. 240 36' 01" W. CONTINUING ALONG SAID LINE 14.65 FEET TO THE POINT OF BEGINNING THIS PARCEL CONTAINS 0.2973 ACRES MORE OR LESS. DESCRIPTION PREPARED BY: y WILLIAM B. MASTERSON, L.S. 4 818 uo` 481.8 'rc LIC. EXP. 9-30-96 R 1pf 9jF OF C wsdocs\prodn\1729-09\17293rd.lgl 5-6-93 EXHIBIT go�B CHEbKED BY DATE REVISED ail 40 � D m • • { X , x. f n �a , Sia '` II rM i: jjjj��lll� w to nt . < +ij[.=. .4-7. t MM, GtsAll ✓ Cn . ti „� i CID rn r- rh / ' Fir r .i 7J ! f l+ to r TZ m x t •" t _ ' y ' . ..lr O �O'1 r' S },1 y:''i • .f !.�'„i+ 0 0)Z AD N C. fi-1µ” •- i '1 :� /, Q, I Z Z A ry Z C�. I: i. d ��.��#:"`1 jI`�t ON L7z� W N ➢ 1.. ,+ ^ I I J0 Ln rel n x 7' rn Ln rr-- Ile rtr) r �43D]�, 1 F 0 p m -t y? ZA r m r A r x l}' s8;. p�4t O m v rn " I 1� I�Cn { ?;` r 1 +� _ ' r a Ln -17 mo �� �.� f f• 'uQ � Mp�z Ln r-! x ° > r" > z.:', �.tw •. 9..; ....r>.bt,.x ��N k -! ; r , ..� ,. , .. N. .� rpli . , .,r.. S+ � A '�� r- n t x -•, a -+ m � i a =.1 �•r - �w��' °'' i i � N�y I2 I Y .y . {700 ?vim z -a -40 lV7 as 7-,,,,o SDC A t > xx --4 � n �� 10 r N mvtn + .. rn 0QS T �N ~�4 r�+ 2o m 1,.4 xvp ANY --40'Z Qry2 ! In n "' �+ a I` 1 rim -' -{L"7xA 6-;z X Z rn -A b 2 j a tT3 s �y?a join r en �+ntn z �� Om v�r7> ata i m•._a ��� sIii• �y Fr'S ,'� y+ t7 ❑ m x 0 moo Z C) Val +i :n om X1 0 x3 7. wl jj rnj 41ry p San Rafael, California 1993 The Roman Catholic Archbishop of San Francisco; Grantor D -".I CO.I RTE. IR/W E.A.I v,+ MRN 101 115740 TEMPORARY CONSTRUCTION EASEMENT AGREEMENT CITY OF SAN RAFAEL THIS AGREEMENT IS MADE AND ENTERED INTO by and between the CITY OF SAN RAFAEL, a municipal corporation, "City" and THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation Sole, "Grantor." WITNESSETH: RECITALS: A. GRANTOR is the owner of that certain real property situate in the City of San Rafael, County of Marin, State of California and commonly referred to as Assessor Parcel No. 175-250-07 and as more particularly described in the Preliminary Title Report No. 147802, dated January 14, 1991 and any updates thereof prepared by First American Title Company of Marin, a copy of which is attached hereto'as Exhibit "A." B . CITY desires to acquire a temporary non-exclusive construction easement (attached hereto as Exhibit "B," Parcel No. 8) (the "Temporary Non -Exclusive Construction Easement") in connection with the construction of the Merrydale Overcrossing in the City of San Rafael (the "Project"). C. GRANTOR is willing to grant to CITY the Temporary Non -Exclusive Construction Easement and CITY agrees to accept the Temporary Non -Exclusive Construction Easement upon terms and conditions set forth below. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED as follows: For good and valuable consideration, the adequacy of which the Grantor hereby acknowledges, the Grantor shall: (A) Grant the Temporary Non -Exclusive Construction Easement by execution of this agreement. It is understood and agreed by the Darties hereto that said Temporary Non -Exclusive Construction Easement Agreement shall not be recorded and will terminate upon recordation of a Notice of Completion of the project by the Citv_ or, on December 31. 1995. whichever occurs first. 2. The City of San Rafael shall: (A) Not record this TemDorary Non -Exclusive Construction Easement Agreement. and, the arant thereof shall be evidenced by execution of this ag_ reement. by both Darties herein. 3. It is agreed and confirmed by the parties hereto that Grantor makes no warranties or representations concerning the physical condition of the lands being acquired or their uses, other than to state that to the best of Grantor's knowledge, information and belief, there are no material defects on the property. However, City acknowledges that there may be defects, whether natural or man made, on the lands being acquired about which neither party hereto has knowledge or information and City agrees to take the Temporary Non - Exclusive Construction Easement in its "AS IS" physical condition and City hereby Taken from Caltrans Form RW 09-04-04 5/28/93 assumes the risk of the existence of any defects as to which Grantor has no actual knowledge or information. 4. It is agreed and confirmed by the parties hereto that notwithstanding other provisions in this agreement, the right of possession and use of the subject property by the City, including the right to remove and dispose of improvements, shall commence on 7u.,ne. -L5 , 1993, or the close of escrow controlling this transaction, whichever occurs first, and that the good and valuable consideration as stated in Paragraph 1 herein includes, but is not limited to, full payment for such possession and use, including damages, if any, from said date. 5. It is agreed and confirmed by the parties hereto that any construction work associated with the Project located on the Temporary Non -Exclusive Construction Easement shall be conducted by the City, its contractors, employees, agents and/or assigns between the hours of 7:30 AM through 5:30 PM Monday through Friday but not on Saturdays, Sundays or Holy Days so as not to interfere with cemetery activities on those days. 6. At no expense to Grantor and at the time of construction, City shall, at its sole expense, construct the improvements as illustrated in Exhibit "C," attached hereto and made a part hereof. Upon completion of construction of said improvements, the improvements within the limits of the Grantor's real property will be considered Grantor's responsibility and are to be maintained, repaired and operated as such by Grantor in accordance with and subject to the laws of the State of California and the rules and regulations of the City of San Rafael. The City will plant at its expense 15 each - 36 inch box size trees along the frontage of Grantor's property within the boundaries of the City's Fee Take and existing property as shown in Exhibit D. City agrees to consult with the Grantor regarding the type of trees to be planted and their approximate locations. It is understood and agreed to by the parties hereto that the City will be solely responsible for the planting and maintenance of said trees. 7. All work performed under this agreement shall conform to all applicable building, fire and sanitary laws, ordinances, and regulations relating to such work, and shall be done in a good and workmanlike manner. All structures, improvements or other facilities, when removed, and relocated, or reconstructed by the City, shall be left in as good as condition as found. 8. Any notice or demand which either the Grantor or City desire to serve upon the other may be served either personally or by depositing the notice or demand in the United States Post Office, postage prepaid, addressed as follows: Grantor: The Roman Catholic Archbishop of San Francisco c/o Catholic Cemetery Office P.O. Box 1577 Colma, CA 94014 Charles P. Shea Cesari, Werner and Moriarty 360 Post Street, Suite 702 San Francisco, CA 94108 5/28/93 2 5/28/93 City: Lloyd Strom, Department of Public Works City of San Rafael P.O. Box 151560 San Rafael, CA 94915 Peter Franklin Goldfarb & Lipman 1 Montgomery Street Telesis Tower, 23rd Floor San Francisco, CA 94104 9. Grantor warrants that there are no oral or. written leases on all or any portion of the property exceeding a period of one month, and the Grantor further agree(s) to hold the City harmless and reimburse the City for any and all of its losses and expenses occasioned by reason of any lease of said property held by any tenant of Grantor for a period exceeding one month. 10. City shall protect, hold free and harmless and defend and indemnify Grantor including its agents and employees from all liability, penalties, costs, losses, damages, expenses, causes of action, claims of judgment (including attorneys fees) resulting from injury or death sustained by any person or damage to property of any kind which injury, death or damage arises directly or indirectly from the physical condition of the land, or from the construction of the project. City's aforesaid indemnity and save harmless agreement shall apply to any acts or omissions, willful misconduct or negligent conduct whether active or passive, on the part of The Roman Catholic Archbishop of San Francisco, or any of its agents or employees, or subcontractors, except that such agreement shall not be applicable to injury, death or damage to property arising from the sole negligence, or willful misconduct of The Roman Catholic Archbishop of San Francisco, or any of its agents, or employees. City covenants that it will fully comply with the laws, regulations and statutes with respect to safety, accident prevention, safety equipment and practices. City covenants that it will conduct inspections to determine if safe working conditions and equipment exist and will accept sole responsibility for providing a safe place to work for its employees and subcontractors and employees of City's subcontractors and material men and for the adequacy of and related use of all safety equipment. City agrees to indemnify and hold harmless The Roman Catholic Archbishop of San Francisco, including it agents and employees, from any claims, liability, losses, or death resulting therefrom and damages, or other losses, or causes alleged to have been caused by the violation or infraction of any law, order, regulation of statute relating to the safety of employees. City further agrees to hold harmless the Grantor from any and all claims for loss, damage, injury or liability of whatsoever nature and howsoever the same may be caused or may arise resulting directly or indirectly from the partial acquisition of Grantor's property by City for the Project, by the heirs of Marie L. Lucas whose rights and claim to Grantor's property are stated in that certain deed filed for record on March 8, 1880 in Book U of Deeds at Page 341, Marin County Records. City further agrees that it will name Grantor as a co-insured on any policy of liability insurance that it purchases in connection with the construction of the project, and further agrees that it will require the contractor, performing construction of the project, to name Grantor as a co-insured on the contractor's policy of liability insurance in connection with the construction of the project. 11. Grantor and City agree that the good and valuable consideration as stated in Paragraph 1 above shall constitute full compensation, including any damages and attorneys' fees to which Grantor might be entitled, for both the Temporary Non -Exclusive Construction Easement referred to in this Contract and all rights of possession and use of 3 Grantor's property based on the eminent domain action brought by City (Marin County Superior Court No. 149985) (the "Action"), including any rights to remove and dispose of improvements thereon, but excepting any interest which has accrued on the monies on deposit in connection with the Action. City agrees that it will dismiss with prejudice all claims against Grantor in the Action. Grantor agrees to waive any entitlement it may have to monies on deposit in connection with the Action, excepting therefrom any interest which has accrued on said deposit. Payment of said interest will be made to Grantor at close of the escrow controlling this transaction. 12. It is understood and agreed by the parties hereto that Grantor disputes the City's right to condemn its property and by signing this agreement the Grantor is in no way conceding the City's authority of eminent domain over Grantor's cemetery property. 13. The parties have herein set forth the whole of their agreement regarding the Temporary Non -Exclusive Construction Easement and no amendment thereof can be made by either party, except pursuant to written agreement signed by both parties hereto. The performance of this agreement constitutes the entire consideration for said document and shall relieve the City of all further obligation or claims on this account, or on account of the location, grade or construction of the proposed public improvement. 14. This agreement shall be construed under the laws of the State of California. THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, a Corporation Sole By: Printe J`, F 1 Attorney in Fact Date: I - G'— -i 3 CITY OF SAN RAFAEL Maor ATTEST: Date: 6l s -/q3 5/28/93 4 Form No. 1068-1 (Rev. 7/90) [ixhibit A to Preliminary Report QST AMERIC'.a UK Preliminary First American Title Insurance Company EXHIBIT A :LTA Preliminary Report (Rev. 1 4 +' First American Title Company of Marin ❑ 10 SOUTH KNOLL ROAD P.O. BOX 611 MILL VALLEY, CA 94942 (415) 383-3343 ❑ 350 BON AIR CENTER SUITE 200 GREENBRAE, CA 94904 (415) 461-7570 ❑ 1701 NOVATO BOULEVARD SUITE 304 NOVATO, CA 94947 (415) 898-1665 A600 FIFTH AVENUE P.O. BOX 151289 SAN RAFAEL, CA 94901 (415) 454-2312 FOR ESCROW INQUIRES REPLY TO: Tay Kern, Escrow Officer PROPERTY ADDRESS: Mount Olivet Catholic Cemetery San Rafael, California Your No. Our Order No. 147802 TK SUPPLEMENTAL In response to the above referenced application fora policy of title insurance, this Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which maybe sustained by reason of any defect, lien ore ncumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of title insur- ance, aBinder or Commitment should be requested. Dated as of January 15 19 91 at 7:30 a.m. 'v��!► Title Officer The form of policy of title insurance contemplated by this report is: TO BE DETERhIINED Title to said estate or interest at the date hereof is vested in: THE MOAN CATHOLIC ARCIMISHOP OF SAN FRANCISCD, a Corporation sole The estate or interest in the land hereinafter described or referred to covered by this Report is: A FEE At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in said policy form would be as follows: Affiliated with First American Title Insurance company 147802 Supplemental continued page 2 SUBJECT TO: 1. THE LIEN OF SUPPLEMENTAL TIVAES ASSESSED PURSUANT TO CHAPTER 3.5 COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE AND TAXATION CODE. 2. EASEMENTS: Existing roadway and utilities as are presently installed. 3. TERMS: Terms, Conditions and Provisions for reversion of title, as contained in the Deed from Marie L. Lucas, to J. S. Alemany, recorded March 8, 1880 in Book "U" of Deeds, at Page 341, Marin County Records. 4. RELINQUISHMENT: Release and relinquishment of any and all abutters rights including access rights appurtenant to grantors remaining property in and to the adjacent Highway 101, provided, however, that such remaining property shall abut upon and have access to said frontage 'road which will be connected to the freeway only at such points as may be established by public authority, as contained in the deed from The Roman Catholic Archibishop of San Francisco, a corporation sole to the State of California, recorded June 14, 1956 in Book 1035 of Official Records, at Page 132, Marin County Records. 5. WAIVER: Waiver of any claims for any and all damages to grantor's remaining property contriguous to adjacent Highway 101, by reason of the location, construction, landscaping or maintenance of said Highway, as contained in the Deed referred to under Exception No. 6 above. 6. EASEMENTS: Easements, rights or interest arising out of: A) the sale or transfer of lots, blocks, plots or sections in Mount Olivet Cemetery or of burial rights therein. B) the sale or transfer of crypts or vaults in any mausoleum, and of niches in any columbarium to be erected on the herein described land; and C) any interment in said land. 7. EASEMENTS: Easements over any of the unnamed streets, roads, alleys, walks, paths, parks or parkways shown on the map of said Mount Olivet Cemetery. 8. RESTRICTIONS: Restrictions imposed by law regarding the sale and disposition of said land or a place within any mausoleum or columbarium erected thereon resulting from the use or dedication of said land for cemetery purposes. 9. AN FACTS, rights, titles, interests, easements, claims or encroachments that a correct survey of the herein described property might disclose. 147802 Supplemental con cued page 3 NOTE: County of Marin and City of San Rafael taxes for the fiscal year 1990-91 have been paid in full in the amount of $96.98. Tax Bill No. 175-250-07 Tax Code Area 8-001 CHAIN OF TITLE: Title of the Vestees herein was acquired six months or more preceding the date hereof. DESCRIPTION All that certain real property situate in the City of San Rafael, County of Marin, State of California, described as follows: The lands described under Parcels Second and Eleveth in the Deed recorded = November 19, 1897 in Book 48 of Deeds, at Page 49, Marin County Records, and as set forth and delineated upon that certain map entitled, "Map of. Mount Olivet Cemetery Near San Rafael", filed for record on July 25, 1887 in Volume 1 of Maps, at Page 5, Marin County Records. EXCEPTING THEREFROM, the portions conveyed by'the following Deeds: a) Deed from The Roman Catholic Archbishop of San Francisco, a corporation sole, to the State of California, recorded November 12, 1930 in Book 204 of Official Records, at Page 373, Marin County Records. B) Deed from The Roman Catholic Archbiship of San Francisco, a corporation sole, to the State of California, recorded June 30, 1939 in Book 382 of Official Records, at Page 264, Marin County Records. C) Deed from The Roman Catholic Archbishop of San Francisco, a corporation sole, to the State of California, recorded June 14, 1956 in Book 1035 of Official Records, at Page 132, Marin County Records. ALSO EXCEPTING THEREFROM any portions of said lands lying within the boundaries of the lands conveyed in the Deed from Marie L. Lucas to The County of Marin, recorded November 7, 1883 in Book "z" of Deeds, at Page 252, Marin County Records. e -------------- W z /pyo �•,. 0 Mw�•�o� R� t`a b Cr Ir 0 ° �� g n m Il / n - i' • O i< w w U r• '• � ` T tD ri O CD N. �� + �• %� co 0 CA � r n W Him. -1�' i. - Ir �_,ii I,V-k; U:Til i •i co OW SdN���y`J ,�► U u N L 2 n I PARCEL 8 REAL PROPERTY IN THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, A PORTION OF THE LANDS CONVEYED TO THE ROMAN CA- THOLIC ARCHBISHOP OF SAN FRANCISCO BY DEED RECORDED NOVEMBER 19, 1897 IN BOOK 48 OF DEEDS AT PAGE 49 IN THE RECORDS OF SAID COUN- TY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF SAID PARCEL WITH WESTERLY LINE OF THE PARCEL CONVEYED TO THE COUNTY OF MARIN NOVEMBER 8, 1883 BY DOCUMENT RECORDED IN BOOK Z OF DEEDS AT PAGE 252 IN THE RECORDS OF SAID COUNTY; THENCE N. 820 38' 32" W. ALONG THE NORTHERLY LINE OF THE FIRST SAID PARCEL 49.25 FEET TO THE BEGINNING OF A NON -TANGENT CURVE TO THE LEFT FROM WHICH THE RADIUS POINT LIES S. 100 03' 43" W. 756.05 FEET; THENCE ALONG SAID CURVE AND NORTHERLY LINE THROUGH A CENTRAL ANGLE OF 210 13' 57" AN ARC DISTANCE OF 280.18 FEET TO A POINT FROM WHICH THE RADIUS POINT LIES S. 110 10' 14" E. AND THE ACTUAL POINT OF BEGINNING; THENCE THROUGH THE FOLLOWING COURSES: 1) CONTINUING ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 50 06' 36" AN ARC DISTANCE OF 67.43 FEET TO A POINT OF CUSP WITH A CURVE TO THE LEFT FROM WHICH THE RADIUS POINT LIES N. 390 06' 11" E. 255.00 FEET 2) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 330 39' 44" AN ARC DISTANCE OF 149.82 FEET 3) N. 50 26' 27" E. 20.00 FEET 4) S. 840 33' 33" E. 320.91 FEET TO THE WESTERLY LINE OF THE LANDS OF THE STATE OF CALIFORNIA AS DESCRIBED IN BOOK 382 OF OFFICIAL RECORDS AT PAGE 264 IN THE MARIN COUNTY RECORDS 5) N. 510 24' 11" W. 34.70 FEET 6) N. 360 00' 31" W. 14.70 FEET 7) N. 840 33' 33" W. 282.12 FEET TO A CURVE TO THE RIGHT WITH A RADIUS OF 205.00 FEET 8) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 190 52' 43" AN ARC DISTANCE OF 71.12 FEET TO A CURVE TO THE LEFT WITH A RADIUS OF 181.00 FEET EXHIBIT 9 r 9) ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 20 39' 41" AN ARC DISTANCE OF 8.41 FEET TO THE ACTUAL POINT OF BEGINNING THIS PARCEL CONTAINS 0.3390 ACRES MORE OR LESS. DESCRIPTION PREPARED BY: WILLIAM B. MASTERSON, L.S. 4818 LIC. EXP. 9-30-96 V, wsdocs\prodn\1729-09\17298th.1g1 5-6-93 D S. goy :4818 '� OF C • 1O R=756.05' L=67.43' L=5'06'36" 2O R=255.00' L=149.82' 0=33'39'44" 3O N5'26'27" E 20.00' ® S84733'33" E 320.9 1 ' 5O N51'24'11"W 34.70' O6 N36'00'31"W 14.70' 7O N84'33'33"W 282.12' O8 R=205.00' L=71.12' Z�=19'52'43" 9O R=181.00' L=8.41' A=2'39'41" EXHIBIT A o� g SUrv. Dwn. AY Ck. WM Approved: G \ACRD\1729-06\ENG\PARCEID.DNG WILSEY 6 HAIL 355 LAKESIDE DRIVE, FOSTER CITY, CALIF. 94404 14151349-2151 EXHIBIT A FOR THE ACQUISITION OF TEMPORARY NON-EXCLUSIVE CONSTRUCTION EASEMENT ALONG MERRYDALE ROAD KtV. 5 -LIS -y3 DWG. N0. 8 (REV.1) SCALE: I"=50' DATE: 8-03-89 BK N0. K- I I CHECKED BY j I I DATE REVISED I Ir FA- A W !" 7' -u Fj,)jam•-\—•�•_w__._......._._..... 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