HomeMy WebLinkAboutPW Pamela and Howard Nurse Possession and Use of Real PropertyRECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
This document is exempt from recording fees
pursuant to Government Code § 27383
(space above this line for Recorders Use)
AGREEMENT
FOR
POSSESSION AND USE OF REAL PROPERTY
ASSESSOR'S PARCEL NO. 014-152-19
This Possession and Use Agreement ("Agreement") is made on y and between
City of San Rafael ("City"), and Pamela and Howard Nurse ("Owners"), who shallbe collectively referred
to as the "Parties."
RECITALS
A. City requires immediate possession and use of Owners real property to construct certain public
street improvements and related facilities. Owner's real property is located in Marin County, California.
The approximate location of the proposed retaining wall with the property lines are shown in the attached
Exhibits "A." The city will have a licensed surveyor locate the retaining wall once it is built. At that time the
city will provide a legally described property acquisition and plat map for negotiations and acquisition.
B. The property interests are required for the purpose of Francisco Boulevard East Sidewalk Project
(the "Project"). The property interests required by City are designated by City as Parcel No's.014-152-19
(the "Subject Property'). The purpose of this Agreement is to allow the City to proceed with construction
of the Project without delay.
C. The Parties acknowledge and agree that any delay in the continuation of construction of the
Project is contrary to public interest. It is the intent of City to pay fair -market compensation to the Owners
for permission to enter the Subject Property and to construct the Project, and as consideration for the
rights set forth in the paragraph entitled "Possession," below. City has made a firm written offer to pay the
total sum of $6,000 to Owners and any other persons having an interest in the Subject Property. The City
will conduct a final survey upon the completion of the improvements, then they will reappraise based on
the survey and pay owners the reappraised value. This amount does not include compensation for any
loss of business goodwill, pre -condemnation damages, loss of rent or any other claims for just
compensation except for the City's appraised fair market value of the Subject Property (and, if applicable,
severance damages). This amount does not include reimbursement for relocation benefits which will be
handled pursuant to state and federal regulations and policies, if eligible. The Owners have not accepted
this offer for the Fee Parcel and the Temporary Construction Easement required.
OPERATIVE PROVISIONS
In consideration of the sum to be paid to the Owners and in consideration of the foregoing recitals
and the promises, covenants and any other conditions set forth in this Agreement, the Parties agree as
follows
Possession
Owners grant to City, the State of California, Department of Transportation (Caltrans) and their
contractors, agents, representatives, employees and all others deemed necessary by City and State, the
irrevocable right to exclusive possession and use of the fee simple portion of the Subject Property and
non-exclusive possession and use of the right to enter portion of the Subject Property, including but not
limited to, the right to construct and operate the Project and the right to remove and dispose of any and ali
improvements within and/or straddling the right of way commencing onALAe (Date of
possession). In consideration for this irrevocable grant of possession and use. City will ter de into escrow
the sum of $6,000. The City shall have the right to possess the Subject Property and begin construction
of the Project on the date the sum is paid into escrow.
Just Compensation and Appraisal
2. Owners acknowledge that the sum referenced in paragraph 1 represents the full amount of the
City -approved appraisal of what City believes is just compensation owed for the acquisition of the Subject
Property. The Parties agree that the deposit and payment under this Agreement shall be equivalent to a
deposit and payment under California Code of Civil Procedure section 1255.010. Accordingly, the Parties
agree that the amount deposited or withdrawn under this Agreement may not be given in evidence or
referred to in any trial on the issue of compensation.
Escrow
3 This transaction will be handled through an escrow with Old Republic Title Company, Escrow
No. City shall pay all escrow fees incurred in this transaction. Owners shall be entitled
to interim disbursement of $6,000 from the sum referred to in paragraph 1, less any amounts payable to
any other persons having an interest in the Subject Property. Owners shall not be entitled to receive any
proceeds until:
a. All holders of liens and encumbrances on the Subject Property have received full payment
for all principal and interest due to them and have executed a reconveyance of their
interests in the Subject Property; and
b. All other parties having interests in the Subject Property have received payment or have
consented to a payment to Owners, and
c. City has acknowledged in writing that it concurs that all other parties having interests in the
Subject Property have received full payment or have consented to Owner's withdrawal.
Term
4. This Agreement shall remain in full force and effect until either a final settlement, or until City
abandons the proceedings in eminent domain in whole pursuant to Section 14 of this Agreement, or until
a Final Order of Condemnation under section 1268.030 of the California Code of Civil Procedure is
entered by the court and recorded by City. Any sum disbursed to Owners from this escrow fund shall be
deducted from the ultimate amount received by Owners as a result of any settlement, award, or verdict of
just compensation for the Subject Property.
Effective Date
5. This Agreement is effective as of the date of full execution by the Parties (the "Effective Date"),
From and after the Effective Date, Owners shall not assign sell, encumber or otherwise transfer all or any
portion of their interest in the Subject Property, or the property, without first obtaining City's prior written
consent.
Taxes (Fee Simple On]
6. Owners agrees to submit payment, when due, to the County Tax Collector for all taxes and
special assessments on the Subject Property that are due during the period from the date of possession
(as set forth in paragraph 1 of this Agreement) to the date title transfers to the City. Title transfers to the
City on the date the Grant Deed or Final Order of Condemnation is recorded in the Office of the County
Clerk -Recorder. Owners shall not be required to pay taxes or special assessments on the Subject
Property on or after the date title transfers to the City. After the date title transfers to the City, the City will
request that the County Tax Collector cancel taxes and/or special assessments for the period from the
date of possession to the date title transferred to the City. After the tax cancellation request is made by
the City, Owners may file a claim with the County tax collector for a refund of any tax overpayment.
Notwithstanding any other provision of this Agreement, no cancellation shall be made of all or any portion
of any taxes that were due prior to the date of possession but which were unpaid; escrow shall pay in a
timely manner all delinquent property taxes due from the sums deposited into escrow. (California
Revenue and Taxation Code section 5084.)
Eminent Domain Proceedings
7. This Agreement is made with the understanding that City will continue to negotiate in good faith
with Owners to acquire its interest in the Subject Property by direct purchase. It is further understood that
in the event an agreement for purchase is not reached within 6 months of the Effective Date of this
Agreement, such failure will be an acknowledgement that the negotiations to acquire the Subject Property
have proved futile, and City shall proceed with its right to file a complaint in eminent domain to acquire
title to the Subject Property. Such complaint shall be filed within 45 days after the time period provided in
this paragraph has expired.
8. If City begins proceedings in eminent domain, it is understood and agreed that this Agreement
shall continue in effect until either a settlement is reached or a Final Order of Condemnation under
section 1268.030 of the California Code of Civil Procedure is entered by the court and recorded by the
City.
Refund
9. Owners agree that in the event that ultimate amount of any settlement, award, or verdict is less
than the total of the sum paid to and withdrawn by Owners. the Owners shall refund the difference
including interest at the apportionment rate of interest as provided in Code Civil Procedure section
1268.350 to City.
Waiver
10. Owners waive any right to challenge City's right to possess and use the Subject Property in any
subsequent eminent domain proceedings filed by City. Owners also waive all claims and defenses in its
favor in any subsequent eminent domain proceeding, except a claim for greater compensation, and
waives any claims of inverse condemnation against City.
Date of Valuation
11. In the event proceedings in eminent domain are begun, the date of valuation for determining the
amount of just compensation for the Subject Property shall be the date which City files the complaint in
such proceeding.
Interest
12. Compensation awarded in an eminent domain proceeding shall draw interest as prescribed ire
section 1268.350 of the California Code of Civil Procedure. Owners shall be entitled to receive interest on
any sum received as compensation for its interest in the Subject Property, whether pursuant to this
Agreement, a subsequent settlement or court judgment, beginning on the date City takes possession of
the Subject Property pursuant to this Agreement and ending on the earliest of the dates as provided in
Code of Civil Procedure section 1268.320.
Hazardous Materials
13. The Owners hereby represent and warrant that during the period of their ownership of the
property, there have been no disposals, releases or threatened releases of hazardous substances or
hazardous wastes on, from, or under the property. Owners further represent and warrant that Owners
have no knowledge of any disposal, release, or threatened release of hazardous substances or
hazardous wastes, on, from, or under the property.
Abandonment of Proceeding
14. Under section 1268.510 of the California Code of Civil Procedure, at any time after the
commencement of proceedings in eminent domain, City reserves the right to abandon the proceeding in
whole or in part.
Authority to Execute and Bind
15. Each of the Parties represents and warrants that each of the persons executing this Agreement
has full and complete legal authority to do so and thereby binds the party to this Agreement.
Entire Agreement
16. This Agreement reflects the entire agreement between the Parties and shall supersede all prior or
contemporaneous oral or written understandings, statements, representations or promises between the
Parties concerning the matters contained herein.
Governing Law
17. This Agreement shall be governed and construed in accordance with California law. The language
of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning and
not strictly for or against any of the Parties.
Successors in Interest
18. This Agreement shall be binding upon and inure to the benefit of the heirs, devisees, executors,
administrators.. legal representatives, successors and assigns of the Parties.
Understanding of Agreement
19. This Agreement has been negotiated in good faith and each parry warrants and represents that in
executing this Agreement, they are not relying upon any representation, promise, inducement or
statement made in negotiation that has not been included in the terms of this Agreement.
Fees and Costs
20. Except as otherwise provided in this Agreement, each party shall bear all costs (including expert
and appraisal fees) (excluding appraisal fees not to exceed $5,000 pursuant to section 1263.025 of the
California Code Civil Procedure) and attorney's fees individually incurred in connection with negotiating
the matters described in this Agreement.
Severability
21. In case any part, term, portion or provision of this Agreement is determined to be illegal. invalid or
unenforceable, the remaining parts, terms portions and provisions shall remain valid, enforceable, and in
full force and effect.
Amendment to A-greement
22. This Agreement may only be amended by written agreement, executed by all Parties.
Counterparts
23. This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
CITY:
CITY OF N RAF
By:
APPR VEDAS TO FORM:
City Attorney
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OWNERS:
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Unless corporate resolution delegate,
an individual to sign contracts. an
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signed by the President or mice
President and the Secretary or
Treasurer of the corporation. A
general partner shall sign on behalf of
a general partnership. The managing
member, if authorized, may sign on
behalf of a limited liability corporation.
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CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Public Works
Project Manager: Iman Kayani for AM Extension: 3352
Contractor Name: Howard and Pamela Nurse
Contractor's Contact: Howard Nurse Contact's Email: hlnurse@cmmsft.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
DATE
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor
Click here to
❑
enter a date.
b. Email contract (in Word) and attachments to City
6/15/2021
City Attorney
Attorney c/o Laraine.Gittens@cityofsanrafael.org
❑X IKK
2
a. Review, revise, and comment on draft agreement
Click here to
and return to Project Manager
enter a date.
❑
b. Confirm insurance requirements, create Job on
Click here to
PINS, send PINS insurance notice to contractor
enter a date.
❑
3
Department Director
Approval of final agreement form to send to
Click or tap
❑
contractor
to enter a
date.
4
Project Manager
Forward three (3) originals of final agreement to
Click here to
❑
contractor for their signature
enter a date.
5
Project Manager
When necessary, contractor -signed agreement
❑ N/A
agendized for City Council approval *
*City Council approval required for Professional Services
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Click here to
Date of City Council approval
enter a date.
I
PRINT _�
Project Manager
CONTINUE ROUTING PROCESS WITH HARD COPY
6
I Forward signed original agreements to City
Attorney with printed copy of this routing form
Review and approve hard copy of signed
2p -
7
City Attorney
agreement
8
City Attorney
Review and approve insurance in PINS, and bonds
f'
1 5P -Z(
h-&
(for Public Works Contracts)
,• / / ��
9
City Manager/ Mayor
Agreement executed by City Council authorized
official
Attest signatures, retains original agreement and
10
City Clerk
forwards copies to Project Manager
f