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HomeMy WebLinkAboutAgr 2021-08-01 (Hampton)RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Town Clerk Town of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 This document is exempt from recording fees pursuant to Government Code § 27383 (space above this line for Recorder's Use) AGREEMENT FOR POSSESSION AND USE OF REAL PROPERTY ASSESSOR'S PARCEL NO. 055-222-04 This Possession and Use Agreement ("Agreement") is made on by and between Town of Tiburon ("Town"), and Sharon M. Hampton, as trustee of the Hampton 1994 Survivor's Trust dated June 3, 1994 ("Owner"), who shall be collectively referred to as the "Parties." RECITALS A. Town requires immediate possession and use of a portion of Owner's real property to construct certain public utility improvements and related facilities. Owner's real property is located in Marin County, California, legally described in the attached Exhibit "A" ("Subject Property"). See Exhibit "B" for the specific use details and description for the Easement area ("Easement Area"). B. The property interests are required for the purpose of Hawthorne Utility Undergrounding Project (the "Project"). The property interests required by Town are designated by Town as an easement over a portion of Parcel No's. 055-222-04 (the "Easement"). See Exhibit "B" for the specific use details and description for the Easement area. The purpose of this Agreement is to allow the Town to proceed with construction of the Project without delay. C. The Parties acknowledge and agree that any delay in the start of construction of the Project is contrary to public interest. It is the intent of Town 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. Town has made a firm written offer to pay the total sum of $21,225.00 to Owners and any other persons having an interest in the Easement. 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 Town's appraised fair market value of the Easement (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 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 and Use 1. Owners grant to Town and their contractors, agents, representatives, employees and all others deemed necessary by Town, the irrevocable right to non-exclusive possession and use of the Easement portion of the Subject Property, including but not limited to, the right to construct and operate the Project commencing on June 1, 2021 (Date of possession). In consideration for this irrevocable grant of possession and use, Town will tender into escrow the sum of $ 21,225.00. Town shall have the right to possess the Easement and begin construction of the Project on the date the sum is paid into escrow. 2. Each party shall exercise its rights under this Agreement as expeditiously as possible, and in such a manner as to avoid unreasonable interference with the other Party's use of the Subject Property. If, in the course of the use of any portion of the Subject Property or the Easement Area, Town or any of Town's agents causes any damage to the Subject Property, Town shall, at its own cost and expense, promptly repair any and all such damage as necessary to restore the impacted area or improvements to the condition that existed immediately prior to the damage, including without limitation the paved surfaces and landscaping on or adjacent to the Easement Area; provided that such restoration shall be in a manner that does not unreasonably interfere with the uses allowed in the Easement Area. If Town damages, removes or destroys any landscaping of Owner, Town shall replace or restore such landscaping to its prior condition in a manner which, among other things, will maintain the privacy screens provided by the existing landscaping; provided that the replacement landscaping shall be planted so as not to unreasonably interfere with the uses allowed in the Easement Area. Town shall coordinate with Owner regarding such restoration or replacement. Town shall notify its contractors of the presence of the extensive root system of the large Cedrus deodara tree adjacent to the Easement Area, and shall instruct its contractors to avoid any damage to the tree and to such root system. Additional details regarding the restoration of the landscaping and other issues that are not addressed in this Agreement shall be included as part of any final Easement Purchase Agreement (as defined below). Just Compensation and Appraisal 3. Owners acknowledge that the sum referenced in paragraph 1 represents the full amount of the Town -approved appraisal of what Town believes is just compensation owed for the acquisition of the Easement. 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 4. This transaction will be handled through an escrow with First American Title Company, Escrow No. . Town shall pay all escrow fees incurred in this transaction. Owners shall be entitled to interim disbursement of $11,000 from the sum referred to in paragraph 1. Owner 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 b. All other parties having interests in the Easement have received payment or have consented to a payment to Owner, and C. Town has acknowledged in writing that it concurs that there are no other parties having interests in the Easement. Term 5. This Agreement shall remain in full force and effect until either a final settlement, or until Town 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 Town. 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 Easement. Effective Date 6. 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 Town's prior written consent. Eminent Domain Proceedings 7. This Agreement is made with the understanding that Town will continue to negotiate in good faith with Owners to acquire the Easement by direct purchase. It is further understood that in the event an agreement for purchase ("Easement Purchase Agreement") is not reached within six (6) months of the Effective Date of this Agreement, such failure will be an acknowledgement that the negotiations to acquire the Easement have proved futile, and Town shall proceed with its right to file a complaint in eminent domain to acquire the Easement. Such complaint shall be filed within 45 days after the time period provided in this paragraph has expired. 8. If Town 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 Town. 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 Owner, the Owner shall refund the difference including interest at the apportionment rate of interest as provided in Code Civil Procedure section 1268.350 to Town. Waiver 10. Owner waives any right to challenge Town's right to possess and use the Subject Property in any subsequent eminent domain proceedings filed by Town. Owner also waives any claims of inverse condemnation against Town. 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 Easement shall be the date which Town files the complaint in such proceeding. Interest 12. Compensation awarded in an eminent domain proceeding shall accrue interest as prescribed in 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 Town 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 Owner hereby represents and warrants that during the period of her ownership of the property, to her knowledge, 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, Town 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. Understandina of Aareement 19. This Agreement has been negotiated in good faith and each party 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 incurred by Owner, which shall be paid by Town, 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. Indemnity 21. Town will require its contractor(s) to indemnify, hold harmless, and defend Owner from all claims, demands, suits, losses, damages, injury, and liability incurred by reason of any act or omission by contractor in connection with the entry onto and use of Owner's property pursuant to this Agreement, except where the claim, demand, suit, loss, damage, injury, or liability arises from the sole or active negligence or willful misconduct of Owner, or her agents, employees, lessees, tenants or contractors. 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 [Remainder of page intentionally left blank. Signatures on following page.] AM2n§M2qto A mement 22. This Aoreement may only be amended by wriften a-2reamera, ex led, by all Parfles. 23. This Agreement: may be executed In ofle or more courderpaits, each cR whkh shall W doomed an oro* but all of which together shall oonsfitute one mW the same kistrument. TOVM: OWNEM, TOWN OF By: !&haron% �Hir-i;i­oi�i�,r�—- Hampton 1994 SUivivor's Trust dated June 3,1994 UnWds Wrparate MOW= deflates an Wtdiv4dval to cion contracts, an agreement %vM a CorporaWn shag be signed bY Ow President or Vice pre"rl ftit po the Souretary of Tromfer of tie our pratiam A gerwral parr ll sign on behalf of a general pannamhip. The man it Member, 0 authorized, may sign an behalf of a Miftod lMgity aporation. full force and effect. Amendment to Agreement 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. TOWN: TO% APPROVED AS TO FORM: Tow - Attorney OWNER: Sharon M. Hampton, Trustee Hampton 1994 Survivor's Trust dated June 3, 1994 Unless corporate resolution delegates an individual to sign contracts, an agreement with a corporation shall be signed by the President or Vice 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. EXHIBIT A (APN 055-222-04) Lot 7 as shown upon the map entitled "Map of Tiburon Terrace Marin County, California " filed for record April 18, 1947 in Book 6 of Maps at page 29, Marin County Records.