HomeMy WebLinkAboutHuntington Beach City School District - 2015-12-07AGREEMENT FOR ACQUISITION
AND ESCROW INSTRUCTIONS
This AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 8th day of December 2015, and constitutes an
agreement by which HUNTINGTON BEACH CITY SCHOOL DISTRICT, a California public
school district ("Seller" or "District") agrees to sell, and the CITY OF HUNTINGTON BEACH,
a California municipal corporation ("Buyer" or "City"), agrees to purchase on the terns and
conditions hereinafter set forth:
That certain real property described in Exhibit "A-1" and depicted in Exhibit "A-2"
attached hereto,(the "Recreational Property" or "Open Space Parcel") representing approximately
6.61 acres of the approximate 10.14 acre former Education Center of the District, more
commonly referred to as the LeBard Property. The District is concurrently selling the remaining
approximate 3.53 acres of the LeBard Property for residential use (the "Residential Property") in
accordance with the competitive bidding requirements of Education Code section 17455 et M.,
and consistent with the City's approved entitlements consisting of (a) Tentative Tract Map
Number 17801 for a total of fifteen (15) single-family residential lots; (b) Zoning Map
Amendment No. 12-001; and (c) General Plan Amendment No. 12-002 (collectively, the "Project
Site Entitlements"). Seller and Buyer are sometimes hereinafter referred to individually as a
"Party" and collectively as the "Parties."
The terms and conditions of this Agreement and the instructions to First American Title
Company, located at 4 First American Way, Santa Ana, CA 92707 ("Escrow Holder") with
regard to the escrow ("Escrow") created pursuant hereto are as follows:
1. Purchase and Sale. For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell the Recreational Property to Buyer, and Buyer agrees
to purchase the Recreational Property from Seller, upon the terms and conditions herein set forth:
2. Purchase Price. The purchase price ("Purchase Price) for the Recreational Property shall
be THREE MILLION, ONE HUNDRED SIXTY-EIGHT THOUSAND DOLLARS
($3,168,000). This sum shall be full payment for the Recreational Property and for all damages
of every kind and nature, including, but not limited to, pre -condemnation damages, loss of rental
income and severance damages suffered, any and all claims suffered, or to be suffered, by reason
of the acquisition of the Recreational Property.
3. Acknowledgnent of Full Benefits and Release.
a. By execution of this Agreement, Seller, on behalf of itself and its respective
successors and assigns, hereby acknowledges that this Agreement provides full payment for the
acquisition of the Recreational Property by Buyer, and Seller hereby expressly and
unconditionally waives any and all claims for damages, relocation assistance benefits, severance
damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre -
condemnation conduct, or any other compensation or benefits, other than as already expressly
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provided for in this Agreement, it being understood that this is a complete and full settlement of
all acquisition claims, liabilities or benefits of any type or nature whatsoever relating to or in
connection with Buyer's acquisition of the Recreational Property.
b. This Agreement arose out of Buyer's efforts to acquire the Recreational Property
on a voluntary basis Seller acknowledges and agrees that said purchase price is just
compensation based on the Seller's appraisal price as adjusted by the provisions of the Naylor
Act and includes any and all fixtures and equipment, goodwill (if any) and severance. The
Parties acknowledge the Naylor Act allows cities to purchase surplus recreational and open -
space school property at twenty-five percent (25%) of the appraised value, and that not more
than thirty percent (30%) of the total surplus recreational and open -space school acreage owned
by the District may be purchased at the reduced value Buyer and Seller agree that the acreage
was calculated as detailed in Section 2 of the Memorandum of Understanding executed on May
5, 2014 ("MOU") between the Parties Seller, on behalf of itself and its successors and assigns,
hereby fully release Buyer, its successors, agents, representatives, and assigns, and all other
persons and associations, known or unknown, from all claims and causes of action by reason of
any damage which has been sustained, or may be sustained, as a result of Buyer's efforts to
acquire the Recreational Property or to construct works of improvement thereon, or any
preliminary steps thereto. Seller further releases and agrees to hold Buyer harmless from any and
all claims by reason of any leasehold interest in the Recreational Property. This release shall
survive the Close of Escrow.
C. The Parties hereto hereby agree that all rights under Section 1542 of the Civil
Code of the State of California are hereby waived. Civil Code Section 1542 provides as follows
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his/her favor at the time of executing the release, which if
known by him/her must have materially affected his/her settlement with the
debtor "
Notwithstanding the provisions of Civil Code Section 1542, Seller hereby irrevocably and
unconditionally releases and forever discharges the Buyer and each and all of its officers, agents,
directors, supervisors, employees, representatives, and its successors and assigns and all persons
acting by, through, under, or in concert with the Buyer from any and all charges, complaints,
claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected (hereinafter referred to as "claim" or "claims") which Seller at any time heretofore
had or claimed to have or which Seller at any time hereafter may have or claim to have,
including, without limitation, any and all claims related or in any manner incidental to this
transaction.
I HAVE READ AND UNDERSTOOD PARAGRAPH 3 Acknowledgment of Full
Benefits and Release.
Seller's Initials CA
_U
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4. Payment of Purchase Price The Purchase Price for the Recreational Property shall be
payable by Buyer as follows Within ten (10) days of the Opening of Escrow, Buyer shall
deposit or cause to be deposited with Escrow Holder, in cash or by a certified or bank cashier's
check made payable to Escrow Holder or a confirmed wire transfer of funds, the first annual
installment of SIX HUNDRED THIRTY-THREE THOUSAND, SIX HUNDRED DOLLARS
($633,600) plus or minus Escrow Holder's estimate of Buyer's closing costs, prorations and
charges payable pursuant to this Agreement. All escrow, recording and title insurance costs, if
applicable, are to be paid by Buyer. Prior to the first anniversary of the date of Opening, and
annually thereafter until entire Purchase Price is paid, regardless of Close of Escrow, Buyer shall
make four (4) additional installment payments of SIX HUNDRED THIRTY-THREE
THOUSAND, SIX HUNDRED DOLLARS ($633,600). Upon Close of Escrow, any remaining
annual payments shall be made to District
5. Escrow
a Opening of Escrow. For purposes of this Agreement, the Escrow shall be deemed
opened on the date Escrow Holder shall have received an executed counterpart of this Agreement
from both Buyer and Seller ("Opening Date"). Escrow Holder shall notify Buyer and Seller, in
writing, of the date Escrow is opened and the estimated Closing Date, as defined in Paragraph
5(b), below. In addition, Buyer and Seller agree to execute, deliver, and be bound by any
reasonable or customary supplemental escrow instructions of Escrow Holder, or other
instruments as may reasonably be required by Escrow Holder, in order to consummate the
transaction contemplated by this Agreement. Any such supplemental instructions shall not
conflict with, amend, or supersede any portion of this Agreement. If there is any inconsistency
between such supplemental instructions and this Agreement, this Agreement shall control.
b. Close of Escrow. For purposes of this Agreement, "Close of Escrow" shall be
defined as the date that the Grant Deed, conveying the Recreational Property to Buyer, is
recorded in the Official Records of Orange County, California. This Escrow shall close within
thirty (30) days after the completion of all improvements to the Open Space Parcel as set forth
in the MOU and more particularly described in this Paragraph 5 ("Closing Date").
c Use of Escrow Funds During Escrow, District may use Escrow funds for District
improvements related to parking and other Open Space Parcel improvements as agreed to within
Section 4 of the MOU, as more specifically described in Paragraph 6 below (collectively, the
"Park Site Improvements"). In the event of any conflict or irregularity between the required
improvements described in the MOU and this Agreement, the description of said improvement(s)
contained in this Agreement shall supercede all prior agreements and understandings, including
the MOU, between the Parties relative to the Park Site Improvements.
6 Park Site Improvements District shall cause the successful bidder for the purchase of the
Residential Property following the close of escrow for the Residential Property to design and
construct or cause the construction of the following Park Site Improvements to those portions of
the Residential Property, Recreational Property, and City's adjacent LeBard Park and public
right-of-way (the "City Property") as generally depicted on the site map attached hereto as
Exhibit "B".
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a Within ninety (90) days following the close of escrow for the Residential
Property, the successful buyer of the Residential Property (the "Residential Buyer") shall be
responsible for preparing and submitting to City for its review and approval the plans and
specifications for the construction of the Park Site Improvements. Upon approval of the plans
and specifications for the Park Site Improvements by City, the Residential Buyer shall diligently
pursue to completion all such Park Site Improvements.
b The Park Site Improvements to be constructed by the Residential Buyer will be
performed on the Residential and Recreational Properties comprising the LeBard Property as
well as on the City Property as required by the Project Site Entitlements as more particularly
described below
(1) Public Right -of -Way Improvements
(a) Grading and construction of street improvements to Craimer Lane
and Warwick Drive adjacent to the Residential and Recreational Properties. Improvements to
half section of a portion of Craimer Lane and Warwick Drive to include the curb and gutter
which will be removed and replaced These improvements include the entry returns, sewer and
water laterals for the Residential Property and a new driveway into the City Park parking lot,
sewer and water laterals and new landscaped parkways with curb separated sidewalks (+/- 0.4
acres). Installation of "under walk drains" on Cynthia Drive
(2) LeBard Property Park Site Improvements.
(a) Construction of proposed landscape planter and water quality basin
(0 5 acres) on the Residential Property as further described in Paragraph 6c(l) below
(b) Construction of restroom/concession/storage building (1,500 sf)
(the "Multi -Purpose Building") in support of use of sports fields on Recreational Property.
(c) Construction of paved area surrounding the Multi -Purpose
Building (+/- 2,500 sf) on Recreational Property
(d)
Recreational Property.
(e)
Recreational Property
(g)
sf) on Recreational Property.
Construction of a portion of proposed parking lot (+/- 450 sf) on
Construction of proposed drainage swale (+/- 0.3 acres) on
Relocation of bullpen (+/- 1,000 sf) on Recreational Property.
Construction of a portion of water quality basin and swale (+/- 350
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(h) Replacement and upgrade of the existing walkways within the
sport field areas to ADA accessible walkways and the relocation of bleachers (+/- 0 5 acres) on
Recreational Property ONLY during the August through February off-season for the Sea View
Little League when the sports fields are not being used.
(3) City Park Site Improvements
(a) The existing City Park parking lot will be removed, replaced and
restriped to provide the appropriate ADA accessible parking spaces and to surface dram to the
water quality basin being constructed by the Residential Buyer in accordance with Paragraph
6b(1)(a) (+/- 0 4 acres)
(b) Grading and construction of ADA walkways and landscape
improvements to the existing City Park (+/- 0 4 acres).
(c) Grading and construction of a water quality basin and Swale to
treat run-off from the City Park parking lot (+/- 0.1 acres).
C. Formation of Homeowners Association. Following the close of escrow on the
Residential Property and upon recordation of Final Map 17801, the Residential Buyer shall be
required to create a homeowners association ("H.O.A ") in compliance with the Davis -Stirling
Common Interest Development Act, commencing with California Civil Code Section 4000, for
the purpose of maintaining the common areas within the Residential Property, including, but not
limited to
(1) Water Quality Basin Area Following the close of escrow for the
Residential Property and concurrent with the recordation of Final Map 17801 or issuance of the
first grading permit for the Residential Property, the Residential Buyer shall construct a water
quality basin, drainage swale and "under sidewalk drain" on the southerly portion of the
Residential Property and a portion of the Recreational Property as depicted on Exhibit "B" to
serve the water quality for Residential Property. Buyer or HOA shall be responsible for the
maintenance of the Water Quality Basin
d. Construction Improvements on City Property Following the close of
escrow on the Residential Property and prior to the commencement of any residential building
construction activities following the recordation of Final Map 17801, the Residential Buyer shall,
at its sole cost and expense, construct or cause the construction of those City Park Site
Improvements described in Paragraph 6b(3) above (collectively, the "City Park Site
Improvements") City shall grant the Residential Buyer a Temporary Construction Easement in
the form substantially attached hereto at Exhibit "C" authorizing the Residential Buyer to
construct the City Park Site Improvements (the Temporary Construction Easement").
e. Construction Improvements on LeBard Property Following the close of
escrow on the Residential Property and prior to the commencement of any residential building
construction activities following the recordation of Final Map 17801, the Residential Buyer shall
be required, at its sole cost and expense, construct the LeBard Property Park Site Improvements
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described in Paragraph 6b(2) above (collectively, the "LeBard Property Park Site
Improvements") District shall grant the Residential Buyer a Temporary Construction Easement
in the form substantially attached hereto at Exhibit "D" authorizing the Residential Buyer to
construct those LeBard Property Park Site Improvements located on the Recreational Property
(the "District Temporary Construction Easement").
7 Conditions of Title. It shall be a condition to the Close of Escrow and a covenant of
Seller that title to the Recreational Property shall be conveyed to Buyer by Seller by the Grant
Deed, subject only to the following Approved Conditions of Title ("Approved Condition of
Title"):
a. A lien to secure payment of real estate taxes, not delinquent.
b. The lien of supplemental taxes assessed pursuant to Chapter 3 5, commencing
with Section 75 of the California Revenue and Taxation Code ("Code"), but only to the extent
that such supplemental taxes are attributable to the transaction contemplated by this Agreement.
Seller shall be responsible for, and hereby indemnifies Buyer and the Recreational Property
against, any supplemental taxes assessed pursuant to the Code, to the extent that such taxes relate
to events (including, without limitation, any changes in ownership and/or new construction)
occurring prior to the Close of Escrow.
C. Matters affecting the Approved Condition of Title created by or with the written
consent of Buyer.
d. Exceptions which are disclosed by the Report described in Paragraph 9a(1) hereof
and which are approved or deemed approved by Buyer in accordance with Paragraph 9a(l)
hereof.
Seller covenants and agrees that during the term of this Escrow, Seller will not cause or
permit title to the Recreational Property to differ from the Approved Condition of Title described
in this Paragraph 7. Any liens, encumbrances, easements, restrictions, conditions, covenants,
rights, rights -of -way, or other matters affecting the Approved Condition of Title which may
appear of record or be revealed after the date of the Report described in Paragraph 9a(l) below,
shall also be subject to Buyer's approval and must be eliminated or ameliorated to Buyer's
satisfaction by Seller prior to the Close of Escrow as a condition to the Close of Escrow for
Buyer's benefit. Buyer hereby objects to all liens evidencing monetary encumbrances affecting
the Recreational Property (other than liens for non -delinquent property taxes) and Seller agrees
to cause all such liens to be eliminated at Seller's sole cost and expense prior to the Closing Date
8. Title Policy. Title shall be evidenced by the willingness of the Title Company to issue its
CLTA Standard Form Policy or Binder of Title Insurance ("Title Policy") in the amount of the
Purchase Price showing title to the Recreational Property vested in Buyer subject only to the
Approved Condition of Title
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9. Conditions to Close of Escrow.
a. Conditions to Buyer's Obligations. The Close of Escrow and Buyer's obligation
to consummate the transaction contemplated by this Agreement are subject to the satisfaction of
the following conditions for Buyer's benefit on or prior to the dates designated below for the
satisfaction of such conditions:
(1) Preliminary Title Report and Exceptions. Immediately after escrow is
opened as provided herein, Buyer agrees to cause First American Title Company ("Title
Company") to issue a Preliminary Title Report relating to the Recreational Property. Within
fifteen (15) days after escrow has been opened, the Buyer will cause Title Company to issue an
Amendment to Escrow Instructions, which indicates those title exceptions that the Buyer will
accept. Seller will have ten (10) days after receipt of such amendment to review and approve it.
In the event of non -approval, escrow will fail and each party will instruct Title Company to
cancel the escrow.
(2) ReRresentations Warranties and Covenants of Seller. Seller shall have
duly performed each and every agreement to be performed by Seller hereunder and Seller's
representations, warranties, and covenants set forth in Paragraph 15 shall be true and correct as
of the Closing Date.
(3) No Material Changes. At the Closing Date, there shall have been no
material adverse changes not otherwise provided for in this agreement or mutually agreed to by
both Parties in the physical or financial condition of the Recreational Property.
(4) • Inspections and Studies. On or before thirty (30) days after Opening Date
("Due Diligence Period"), Buyer shall have approved the results of any and all inspections,
investigations, tests and studies (including, without limitation, investigations with regard to
governmental regulations, engineering tests, soil and structure investigation and analysis, seismic
and geologic reports) with respect to the Recreational Property (including all structural and
mechanical systems and leased areas) as Buyer may elect to make or obtain. The failure of Buyer
to disapprove said results on or prior to the expiration of the Due Diligence Period shall be
deemed to constitute Buyer's approval of the results. The cost of any such inspections, tests and
studies shall be borne by Buyer. During the term of this Escrow, Buyer, its agents, contractors
and subcontractors shall have the right to enter upon the Recreational Property, at reasonable
times during ordinary business hours, to make any and all inspections and tests as may be
necessary or desirable in Buyer's sole judgment and discretion. Buyer shall use care and
consideration in connection with any of its inspections. Buyer shall indemnify and hold Seller
and the Recreational Property harmless from any and all damage arising out of, or resulting from
the negligence of Buyer, its agents, contractors and/or subcontractors in connection with such
entry and/or activities upon the Recreational Property.
(5) Governing Body Approval. The completion of this transaction, and the
escrow created hereby, is contingent upon the specific acceptance and approval of the Buyer by
action of the Buyer's City Council and of the Seller by action of the Seller's Board of Trustees.
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b. Conditions to Seller's Obligation. For the benefit of Seller, the Close of Escrow
shall be conditioned upon the occurrence and/or satisfaction of each of the following conditions
(or Seller's waiver thereof, it being agreed that Seller may waive any or all of such conditions):
(1) Buyer's Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer, and
(2) Buyer's Representations. All representations and warranties made by
Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow.
10 Deposits b Ste. At least one (1) business day prior to the Close of Escrow, Seller
shall deposit or cause to be deposited with Escrow Holder the following documents and
instruments.
a. Seller's Certificate Federal. A Certificate of Nonforeign Status (Seller's
Certificate), duly executed by Seller in the form attached hereto as Exhibit "E."
b California Withholding Exemption Certificate. A California Withholding
Exemption Certificate (or in the event the Seller is a non -California resident, a certificate issued
by the California Franchise Tax Board) pursuant to the Revenue and Taxation Code Sections
18805 and 26131, as may be amended, stating either the dollar amount of withholding required
from Seller's proceeds or that Seller is exempt from such withholding requirement
C. Grant Deed The Grant Deed and Agreement conveying the Recreational
Property to Buyer substantially in the form attached as Exhibit "F" duly executed by Seller,
acknowledged and in recordable form.
11. Deposits by Buyer. Buyer shall deposit, or cause to be deposited with Escrow Holder,
the funds which are to be applied toward the payment of the Purchase Price in the amounts and at
the times designated in Paragraph 4 above (as reduced or increased by the prorations, debits and
credits hereinafter provided).
12 Costs and Expenses. The cost and expense of the Title Policy attributable to CLTA
coverage shall be paid by Buyer The escrow fee of Escrow Holder shall be paid by Buyer
Buyer shall pay all documentary transfer taxes, if any, payable in connection with the recordation
of the Grant Deed. The amount of such transfer taxes shall not be posted on the Grant Deed, but
shall be supplied by separate affidavit Buyer shall pay the Escrow Holder's customary charges
to Buyer and Seller for document drafting, recording, and miscellaneous charges. If, as a result
of no fault of Buyer or Seller, Escrow fails to close, Buyer shall pay all of Escrow Holder' s fees
and charges Penalties for prepayment of bona fide obligations secured by any existing deed of
trust or mortgage shall be waived pursuant to Civil Code Procedure Section 1265 240.
13 Prorations. The following prorations shall be made between Seller and Buyer on the
Closing Date, computed as of the Closing Date:
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a. Taxes The Parties hereto acknowledge that both Seller and Buyer are public
entities and are exempt from payment of real property taxes. There will be no proration of taxes
through Escrow. After the Close of Escrow, the Buyer will file any necessary documentation
with the County Tax Collector/Assessor to maintain the property tax exemption.
b. No Rental Pro -rations. Pursuant to Paragraph 23(n) Seller warrants that there are
no tenants or written or oral leases on all or any portion of the Recreational Property and the
Escrow Holder is hereby instructed not to perform any rental pro -rations at the Close of Escrow.
14. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow, the
Escrow holder shall promptly undertake all of the following in the manner indicated
a. Prorations. Prorate all matters referenced herein, based upon the statement
delivered into Escrow signed by the parties
b. Recording. Cause the Grant Deed and any other documents, which the parties
hereto may mutually direct, to be recorded in the Official Records of Orange County, California,
in the order set forth in this subparagraph. Escrow Holder is instructed not to affix the amount of
documentary transfer tax on the face of the Deed, but to supply same by separate affidavit
C. Funds. Disburse from funds deposited by Buyer with Escrow Holder toward
payment of all items chargeable to the account of Buyer, pursuant thereto in payment of such
costs, and disburse the balance of such funds, if any, to Buyer.
d. Documents to Buyer Deliver the Seller's Certificate and Bill of Sale, executed by
Seller, and, when issued, the Title Policy to Buyer.
e Pax demands of existing lienholders. Escrow Holder is hereby authorized and
instructed to cause the reconveyance, or partial reconveyance, as the case may be, of any such
monetary exceptions to Buyer's title to the Recreational Property at or prior to the Close of
Escrow
15. Sellers' Representations and Warranties. In consideration of Buyer entering into this
Agreement, and as an inducement to Buyer to purchase the Recreational Property, Seller makes
the following representations and warranties, each of which is material and is being relied upon
by Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to
Buyer's obligations hereunder):
a Authorization. This Agreement has been duly and validly authorized, executed
and delivered by Seller, and no other action is requisite to the execution and delivery of this
Agreement by Seller.
b. Threatened Actions There are no actions, suits or proceedings pending against,
or, to the best of Seller's knowledge, threatened or affecting the Recreational Property in law or
equity
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C. Third Party Consents No consents or waivers of, or by, any third party are
necessary to permit the consummation by Seller of the transactions contemplated pursuant to this
Agreement.
d. No Violation of Law. To the best of Seller's knowledge, there is no violation of
law or governmental regulation by Seller with respect to the Recreational Property.
e. Condemnation There is no pending, or, to the best of Seller's knowledge,
threatened proceedings in eminent domain or otherwise, which would affect the Recreational
Property or any portion thereof.
f. Compliance with Law To the best of Seller's knowledge, all laws, ordinances,
rules, and requirements and regulations of any governmental agency, body, or subdivision
thereof bearing on the Recreational Property have been complied with by Seller
g. Agreements. There are no agreements (whether oral or written) affecting or
relating to the right of any party with respect to the possession of the Recreational Property, or
any portion thereof, which are obligations which will affect the Recreational Property, or any
portion thereof subsequent to the recordation of the Grant Deed, except as may be reflected in
the Condition of Title, which shall have been approved by Buyer pursuant to the terms of this
Agreement.
h. Documents. To the best of Seller's knowledge, all documents delivered to Buyer
and Escrow Holder pursuant to this Agreement are true and correct copies of originals, and any
and all information supplied to Buyer by Seller is true and accurate.
1. Licenses and Permits To the best of Seller's knowledge, Seller has acquired all
licenses, permits, easements, rights -of -way, including without limitation, all building and
occupancy permits from any governmental authority having jurisdiction
j Hazardous Substances. Except as revealed by Seller to Buyer herein, Seller has
no actual knowledge that there are hazardous substances (as defined below) in existence on or
below the surface of the Recreational Property, including without limitation, contamination of
the soil, subsoil or groundwater, which constitutes a violation of any law, rule, or regulation of
any governmental entity having jurisdiction thereof, or which exposes Buyer to liability to third
parties Seller has not used the Recreational Property, or any portion thereof, for the production,
disposal, or storage of any hazardous substances, and Seller has no actual knowledge that there
has been such prior use of the Recreational Property, or any portion thereof, or that there has
been any proceeding or inquiry by any governmental authority with respect to the presence of
such hazardous substances on the Recreational Property or any portion thereof. Without limiting
the other provisions of this Agreement, Seller shall cooperate with Buyer's investigation of
matters relating to the foregoing provisions of this paragraph, and provide access to, and copies
of, any data and/or documents dealing with potentially hazardous substances used at the
Recreational Property and any disposal practices followed. Seller agrees that Buyer may, with
Seller's prior approval, make inquiries of governmental agencies regarding such matters, without
liability to Seller for the outcome of such discussions. For purposes of this Agreement, the term
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"hazardous substances" means: (i) any substance, product, waste, or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive
Environment Response, Compensation and Liability Act (CERCLA), 42 United States Code
Section 9601 et seq.; the Hazardous Material Transportation Conservation and Recovery Act, 42
United States Code Section 1801 et seq.; the Resources Conservation and Recovery Act, 42
United States Code Section 6901 et seq., the Clean Water Act, 33 United States Code Section
1251 et seq ; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the
California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the
California Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq; the
California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section
25249 5 et seq ; California Health and Safety Code Section 25280 et seq. (Underground Storage
or Hazardous Substances), the California Hazardous Waste Management Act, Health and Safety
Code Section 25170 1 et seq., California Health and Safety Code Section 25501 et seq.
(Hazardous Materials Release Response Plans and Inventory), or the California Porter -Cologne
Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above -cited
California state statue are hereinafter collectively referred to as "the State Toxic Substances
Laws") or any other federal, state, or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous or toxic substance hereafter in effect; (ii) any substance, product,
waste, or other material of any nature whatsoever which may give rise to liability under any of
the above statutes or under any statutory or common law theory based on negligence, trespass,
intentional tort, nuisance or strict liability or under any reported decisions of a state or federal
court; (iii) petroleum or crude oil other than petroleum and petroleum products which are
contained within regularly operated motor vehicles; and (iv) asbestos.
k. Indemnity. Seller agrees to indemnify, defend with counsel selected by Buyer,
protect and hold harmless Buyer, its City Council members, its directors, officers, staff,
employees, agents, contractors, assigns, and any successor or successors to Buyer's interest from
and against all claims, actual damages (including, but not limited to, special and consequential
damages), punitive damages, injuries, costs, response costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges,
penalties, and expenses (including, but not limited to, attorneys' and expert witness' fees and
costs incurred in connection with defending against any of the foregoing or in enforcing this
indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the
Recreational Property, or any indemnified party directly or indirectly arising from or attributable
to: (i) any breach by Seller of any of its agreement warranties or representations set forth in this
Agreement; or (ii) any repair, cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure, or other plan concerning any hazardous substance on,
under, or about the Recreational Property, regardless of whether undertaken due to governmental
action To the fullest extent permitted by law, the foregoing indemnification shall apply
regardless of the fault, active or passive negligence, breach of warranty or contract of Buyer.
The foregoing indemnity is intended to operate as an agreement pursuant to CERCLA Section
107(e), of 42 United States Code Section 9607(E), and California Health and Safety Code
Section 25364, to insure, protect, hold harmless and indemnify Buyer from any liability pursuant
to such sections.
Page 11 of 60
19252v 1 / HBC 76
I Pollutants. To the best of Seller's knowledge, no pollutants or waste materials
from the Recreational Property have ever been discharged by Seller into any body of water, and
Seller has no actual knowledge of any such pollution emission by any other person or entity
M. Waste Disposal. To the best of Seller's knowledge, no portion of the Recreational
Property has ever been used by Seller as a waste storage or disposal site, and Seller is not aware
of any such prior uses.
n. No Notices. Seller has received no written notice of any change contemplated in
any applicable laws, ordinances or restrictions, or any judicial or administrative action, or any
action by adjacent landowners, or natural or artificial conditions upon the Recreational Property
which would prevent, impede, limit, or render more costly Buyer's contemplated use of the
Recreational Property
16. Buyer's Representations and Warranties. In consideration of Seller entering into this
Agreement, and as an inducement to Seller to sell the Recreational Property to Buyer, Buyer
makes the following representations and warranties, each of which is material and is being relied
upon by Seller (the continued truth and accuracy of which shall constitute a condition precedent
to Seller's obligations hereunder):
a. This Agreement and all documents executed by Buyer under this Agreement
which are to be delivered to Seller are, or at the time of Close of Escrow will be, duly authorized,
executed, and delivered by Buyer, and are, or at the Close of Escrow will be legal, valid, and
binding obligations of Buyer, and do not, and at the Close of Escrow will not violate any
provisions of any agreement or judicial order to which Buyer is a party or to which it is subject
b. The representations and warranties of Buyer set forth in this Agreement shall be
true on and as of the Close of Escrow as if those representations and warranties were made on
and as of such time
17. Damage or Condemnation Prior to Closing Seller shall promptly notify Buyer of any
knowledge by Seller of casualty to the Recreational Property or any condemnation proceeding
commenced prior to the Close of Escrow If any such damage or proceeding relates to, or may
result in, the loss of any material portion of the Recreational Property, Seller or Buyer may, at
their option, elect either to:
(a) terminate this Agreement, in which event all funds deposited into Escrow by
Buyer shall be returned to Buyer and neither party shall have any further rights or obligations
hereunder, or
(b) continue the Agreement in effect, in which event upon the Close of Escrow Buyer
shall be entitled to any compensation, awards, or other payments or relief resulting from such
casualty or condemnation proceeding.
18. Notices. All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid,
Page 12 of 60
19252v 1 / HBC 76
return receipt requested, telegraphed, delivered, or sent by telex, telecopy, or cable, and shall be
deemed received upon the earlier of (a) if personally delivered, the date of delivery to the address
of the person to receive such notice, (b) if mailed, four business days after the date of posting by
the United States post office, (c) if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid, or (d) if given by telex or facsimile, when sent. Any notice,
request, demand, direction, or other communication sent by cable, telex, or facsimile must be
confirmed within 48 hours by letter mailed or delivered in accordance with the foregoing
The Buyer's mailing address is
City of Huntington Beach
Attn. City Manager
2000 Main Street, P O. Box 190
Huntington Beach, CA 92648
The Seller's mailing address is -
Huntington Beach City School District
17011 Beach Boulevard, Suite 560
Huntington Beach, CA 92647
Attn: Assistant Superintendent, Administrative Services
Notice of change of address shall be given by written notice in the manner detailed in this
paragraph Rejection or other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to constitute receipt of the notice,
demand, request, or communication sent.
19 Legal Fees In the event suit is brought by either party to construe, Interpret and/or
enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each
party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to
recover its attorney's fees from the non -prevailing party.
20 Assignment. Neither Party may assign, transfer or convey its rights or obligations under
this Agreement without the prior written consent of the other Party, and then only if that Party's
assignee assumes In writing all of that Party's obligations hereunder, provided, however, neither
Party shall in any event be released from its obligations hereunder by reason of such assignment.
21. Indemnification. Each Party hereby agrees to indemnify, defend and hold harmless the
other Party from and against any and all obligations, liabilities, claims, liens, encumbrances,
losses, damages, costs and expenses, including without limitation, attorneys' fees, whether direct,
contingent, or consequential, incurred by that Party relating to the Recreational Property and
arising or accruing from acts, occurrences, or matters that take place on or before the Close of
Escrow or resulting from any breach by the defaulting Party of its representations, warranties
and covenants contained in this Agreement
Page 13 of 60
19252v I / HBC 76
22. Brokerage Commissions. Neither Party has had any contact or dealings regarding the
Recreational Property, or any communication in connection with the subject matter of this
transaction, through any real estate broker or other person who can claim a right to a commission
or finder's fee in connection with the sale contemplated herein. In the event that any broker or
finder claims a commission or finder's fee based upon any contact, dealings or communication,
the party through whom the broker or finder makes its claim shall be responsible for said
commission or fee and all costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by the other Party in defending against the same. The Party through
whom any other broker or finder makes a claim shall hold harmless, indemnify and defend the
other Party hereto, its successors and assigns, agents, employees, officers and directors, and the
Recreational Property from and against any and all obligations, liabilities, claims, demands,
liens, encumbrances and losses (including, without limitation, attorneys' fees), whether direct,
contingent or consequential, arising out of, based on, or incurred as a result of such claim. The
provisions of this Paragraph shall survive the termination of this Agreement
23 Miscellaneous.
a. Survival of Covenants The covenants, representations and warranties of both
Buyer and Seller set forth in this Agreement shall survive the recordation of the Grant Deed and
the Close of Escrow.
b. Required Actions of Buyer and Seller. Buyer and Seller agree to execute such
instruments and documents and to diligently undertake such actions as may be required in order
to consummate the purchase and sale herein contemplated, and shall use their best efforts to
accomplish the Close of Escrow in accordance with the provisions hereof.
c Time of Essence Time is of the essence of each and every term, condition,
obligation, and provision hereof
d. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
e Captions. Any captions to, or headings of, the paragraphs or subparagraphs of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof
f. No Obligations to Third Parties. Except as otherwise expressly provided herein,
the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the Parties hereto, to any person or entity other than the Parties hereto.
g Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference
Page 14 of 60
19252v 1 / HBC 76
h. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the Parties hereto
1. Waiver. The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision hereof
J. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, with the exception of definitions to be
construed under Federal laws cited in Paragraph 150).
k Fees and Other Expenses Except as otherwise provided herein, each of the
parties shall pay its own fees and expenses in connection with this Agreement.
1 Entire Agreement. Except for Section 2 of the MOU, this Agreement supersedes
any prior agreements, negotiations, and communications, oral or written, and contains the entire
agreement between Buyer and Seller as to the subject matter hereof No subsequent agreement,
representation, or promise made by either Party hereto, or by or to an employee, officer, agent or
representative of either party shall be of any effect unless it is in writing and executed by the
Party to be bound thereby.
in. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the Parties hereto.
n Leases. Seller warrants that there are no tenants or written or oral leases on all or
any portion of the Recreational Property and Seller further agrees to hold Buyer harmless and
reimburse Buyer for any and all of its losses and expenses, including relocation assistance costs,
occasioned by reason of any lease of said property held by any tenant of Seller
Page 15 of 60
19252v1 / HBC 76
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written
DATED. D64MO%8= 8 ! 201S Seller•
HUNTINGTON BEACH CITY SCHOOL
DISTRICT, a California public school
istrict
RO D AS TO FORM
COUNTERPART PARKER & COVERT LLP
Douglas N. Yeoman iW'4T A66
Attorney for District
DATED: ��ECL"7y)�2 7�/� Buyer -
CITY OF HUNTINGTON BEACH
A California municipal corporation
REVIEW/ED AND APPROVED
C
Page 16 of 60
lerk
19252v1 / HBC 76
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written.
DATED.
DATED.
REVIEWED AND APPROVED:
City Managet
Seller:
HUNTINGTON BEACH CITY SCHOOL
DISTRICT, a California public school
district
APPROVED AS TO FORM
PARKER 8-COVERT' LLP
Douglas . Yeoniay
Attorney for District
Buyer:
CITY OF HUNTINGTON BEACH
A California municipal corporation
Mayor
City Clerk
APPROVED AS TO NORM:
City Attorney
INITIATED AND APPROVED:
Assistant City Manager
Page 16 of 60
19252v! ! 1113C 76
EXHIBIT "A-1"
Legal Description of Property
Page 17 of 60
19252v1 / HBC 76
TY
That portion of the northwest quarter and southwest quaff
South, Range 10 West in the Rancho Las Bolsas, described
Beginning at a point on the south line of the northwest q'i
point also being common to the southeast corner of Lot 66I
corner of Lot 11, Tract 6003 in the City of Huntington, C
said point also being the Point of Beginning (POB), thence,
said Tract 5128 North 1 ° 15' 10" West, 376.43' to a point lol
way for Crailet Drive, thence along said right of way N
thence South 1 ° 15' 10" East, 110.00' along a property line
5128, thence along the southerly boundary of Tract 5128 N
thence North 82°12'00" East, 129.35', thence North 77'
leaving said boundary South 1°20'20" East, 336.03', thi
10.62', thence South 1°25' 14" East, 26.61', thence North 8
South 57°09' 16" East, 11.60', thence North 88°34'46" East;
East, 10.25', thence North 88°37'33" East, 77.21', North 2
North 61°55'22" West, 12.65', thence North 1°55'36"
47°49'03" East, 32.27', thence North 70°17'17" East, 68,
East, 9.17', thence South 1°04'30" East, 128.96' to the i
section, thence North 88°55'31" East, 30.01' along the r
section, thence South 1 ° 15' 08" East, 267.00' to the center
South 88°55'31" West, 764.52' along said centerline, tr
267 00' to the POB.
See Exhibit "A-2" for a plat depicting the above described
The parcel contains approximately 6.61 acres.
All dimensions and areas are based on record
measurements on the ground.
Page 18 of 60
of Section 8, Township 6
follows•
iarter of said Section 8, said
Tract 5128 and the northeast
ounty of Orange, California,
long the easterly boundary of
ated on the southerly right of
)rth 88044'50" East, 15.00',
common to Lot 61 of Tract
)rth 86048'20" East, 128.71',
;4'00" East, 66.28', thence
nce South 47036' 14" West,
�022'42" East, 48.67', thence
154.67', thence N 59°23'41"
048' 12" East, 50 91', thence
Nest, 102.57', thence North
36', thence North 88036'01"
orth line of the said quarter
orth line of the said quarter
ine of Cynthia Drive, thence
ence North 1 ° 15' 08" West,
and can vary from
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19252vI / HBC 76
EXHIBIT "A-2"
Map of Property
Page 19 of 60
19252v1 / HBC 76
EXHIBIT "A-2"
IT
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30854Hamilton Trail, Trabuco Canyon, CA92679
Page 20 of 60
19252v 1 / HBC 76
EXHIBIT "B"
Site Map of Park Site Improvements
Page 21 of 60
] 9252v 1 / HBC 76
EXHIBIT "B"
RESIDENTIAL
PROPERTY
MULTI -PURPOSE BLDG
WATER QUALITY BASIN
WATER QUALITY SWALE
BULLPEN INJ PROPERTY WALKWAYS
I j lF--_PqBUC_RlGHT_OP WAY It#ROVEhiiNTS
Page 22 of 60
PARKINGLOT----- -
ATER QUALITY BASIN & SWALE
CITY PARK
SITE
19252v I / HBC 76
EXHIBIT "C"
City Temporary Construction Easement
Page 23 of 60
19252v1 / HBC 76
EXHIBIT "D"
District Temporary Construction Easement Agreement
Page 35 of 60
19252v1 / HBC 76
EXHIBIT "E"
Transferor's Certification of Non -Foreign Status
Page 51 of 60
19252v1 / HBC 76
EXHIBIT "F"
Grant Deed and Agreement
Page 53 of 60
19252v1 / HBC 76
5. Time of Essence. Time is of the essence of each and every term,
condition, obligation and provision hereof.
6. Provisions Severable. In the event any portion of this Agreement shall
be declared by any court of competent jurisdiction to be invalid, illegal or unenforceable,
such portion shall be deemed severed from this Agreement, and the remaining parts
hereof shall remain in full force and effect, as fully as though such invalid, illegal, or
unenforceable portion had never been part of this Agreement.
7. Counterparts. This Deed may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Huntington Beach City School District
M.
Its
"Grantor"
City of Huntington Beach
By:
Its.
By:
Its:
Page 55 of 60
"Grantee"
19252v1 / HBC 76
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On , 2016, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the came in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the within instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On , 201_, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the came in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the within instrument.
WITNESS my hand and official seal.
Notary Public
Page 56 of 60
19252v1 / HBC 76
SCHEDULEI
LEGAL DESCRIPTION OF PROPERTY
Page 57 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RECREATIONAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows:
Beginning at a point on the south line of the northwest quarter of said Section 8, said
point also being common to the southeast corner of Lot 66, Tract 5128 and the northeast
corner of Lot 11, Tract 6003 in the City of Huntington, County of Orange, California,
said point also being the Point of Beginning (POB), thence along the easterly boundary of
said Tract 5128 North 1 ° 15' 10" West, 376.43' to a point located on the southerly right of
way for Crailet Drive, thence along said right of way North 88144'50" East, 15.00',
thence South 1 ° 15' 10" East, 110.00' along a property line common to Lot 61 of Tract
5128, thence along the southerly boundary of Tract 5128 North 86048120" East, 128.71',
thence North 82°12'00" East, 129.35, thence North 77°34'00" East, 66.28', thence
leaving said boundary South 1120'20" East, 336.03', thence South 47036'14" West,
10.62', thence South 1°25'14" East, 26.61', thence North 88°22'42" East, 48.67', thence
South 57009' 16" East, 11.60', thence North 88034'46" East, 154.67', thence N 59023'41"
East, 10.25', thence North 88037'33" East, 77.21', North 21048'12" East, 50.91', thence
North 61°55'22" West, 12.65', thence North 1°55'36" West, 102.57', thence North
47049'03" East, 32 27', thence North 70017'17" East, 68 36', thence North 88036'01"
East, 9.17', thence South 1004'30" East, 128.96' to the north line of the said quarter
section, thence North 88055'31" East, 30.01' along the north line of the said quarter
section, thence South 1015'08" East, 267 00' to the centerline of Cynthia Drive, thence
South 88055'31" West, 764.52' along said centerline, thence North 1015'08" West,
267.00' to the POB.
See Exhibit "A-2" for a plat depicting the above described land.
The parcel contains approximately 6.61 acres.
All dimensions and areas are based on record information and can vary from
measurements on the ground.
Page 58 of 60
QR0VESS/O
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19252v1 / HBC 76
SCHEDULE2
PLAT OF PROPERTY
Page 59 of 60
19252v1 / HBC 76
_ f N 88°44'S0' E_15 00' -_-
i 49 12SA
V, sett 77°34� I`
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S 47°361a" W 10 62'
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Page 60 of 60
19252v1 / HBC 76
Dept ID City Manager's Office Page 1 of 2
Meeting Date 12/7/2015
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 12/7/2015
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Ken Domer, Assistant City Manager
SUBJECT: Approve and authorize execution of an Agreement for Acquisition and Escrow
Instructions between the City of Huntington Beach and the Huntington Beach
City School District regarding 6 61 acres of the former LeBard Elementary
School for recreational purposes
Statement of Issue
Per a Memorandum of Understanding entered into on May 5, 2014, between the City and the
Huntington Beach City School District (District), the City and District have finalized an Agreement
for Acquisition and Escrow Instructions (Agreement) in order for the City to purchase 6 61 acres'of
District property formerly used for LeBard Elementary School The purchased acres will remain
recreational in nature, hosting fields utilized by Seaview Little League, and will be added to the
adjacent LeBard Park.
Financial Impact
The purchase price is $3,168,000 to be payable in five annual payments of $633,600 The annual
payments will be split equally between the non -departmental business unit of the General Fund
(10040101 88030) and Park Development Impact — Non Residential Fund business unit
(23545001 81100) which is used for park acquisitions
Recommended Action
Approve and authorize the Mayor and City Clerk to execute the "Agreement for Acquisition and
Escrow Instructions" to purchase 6 61 acres from the Huntington Beach City School District (former
LeBard Elementary School site) for recreational purposes
Alternative Action(s)
Do not approve the Agreement for Acquisition and Escrow Instructions and provide direction to
Staff
Analysis
LeBard Elementary School was built in the 1960's for utilization by the Huntington Beach City
School District Due to declining enrollment, the District closed the school in 1480 and began to
use the facility as their District headquarters. The District permits Seaview Littler League (SLL) to
utilize a portion of the school grounds for baseball fields on a temporary, year-to-year basis, at a
minimal cost Currently, the SLL maintains six baseball fields on the District property.
The City owns and maintains the adjacent LeBard Park, which is approximately three -acres in size.
The park has 38 parking spaces, two tennis courts, meeting room/concession building, tot lot and
general open space Between the City park and the Santa Ana River is an accessible Southern
Item 11. - 1 HB -410-
Dept ID City Manager's Office Page 2 of 2
Meeting Date 12/7/2015
California Edison (SCE) easement area of approximately two -acres This easement area contains
two electrical towers and is generally vacant space However, there are plans for "phase II"
improvements to LeBard Park which show it being improved with an open turf area, walking paths,
and general landscaping improvements.
On March 10, 2008, the City received notice from the District that LeBard School was declared
surplus property. On April 7, 2008, the City Council approved Resolution 2008-22, which resolved
that public land in the vicinity of the school site was inadequate to meet existing and future needs of
the community for recreational purposes, and authorized the City Manager to begin negotiations
with the District for purchase of the site General discussions between the District and City
regarding the LeBard School have taken place for several years and only most recently have the
two parties, along with major input from the adjacent community and facility users, come to an
understanding of the site's future This understanding includes utilizing the existing footprint of the
school buildings and blacktop area for the development of fifteen (15) single family residential
homes on lots comparable to the adjacent neighborhoods, and within the development standards of
the low -density residential (RL) zoning designation The intent was to create a residential
development that fits within the current residential neighborhoods to include public streets and
sidewalks separated from the street by landscaped parkways
As part of the overall process, the development of a Memorandum of Understanding (MOU)
between the District and City was agreed to in order to provide a framework for the terms and
conditions of an eventual agreement for the acreage to be purchased by the City The
Memorandum of Understanding was approved by the City Council on May 5, 2014, and the deal
terms of that MOU have been incorporated into the proposed Agreement.
Since the approval of the MOU on May 5, 2014, the District submitted entitlement plans through the
City's Planning & Building Department which included a Planning Commission Study Session on
May 26, 2015, Planning Commission approval on June 9, 2015, City Council Public Hearing on July
6, 2015, and City Council approval of all entitlements (General Plan Amendment, Zoning Map
Amendment, Tentative Tract Map, and Environmental Impact Report) on July 20, 2015
At this time, the City and District have finalized an Agreement and that Agreement is ready for
consideration by each governing board The District is prepared to consider the item at their
meeting on December 8, 2015
Environmental Status
Not applicable for acquisition Mitigated Negative Declaration was 12-008 was approved by the
City Council on July 20, 2015, for applicable entitlements
Strategic Plan Goal
Improve quality of life
Attachment(s)
1 Agreement for Acquisition and Escrow Instructions
2 July 6, 2015, City Council entitlement package approval Request for Council Action
xB -411- Item 11. - 2
AGREEMENT FOR ACQUISITION
AND ESCROW INSTRUCTIONS
This AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 8th day of December 2015, and constitutes an
agreement by which HUNTINGTON BEACH CITY SCHOOL DISTRICT, a California public
school district ("Seller" or "District") agrees to sell, and the CITY OF HUNTINGTON BEACH,
a California municipal corporation ("Buyer" or "City"), agrees to purchase on the terms and
conditions hereinafter set forth
That certain real property described in Exhibit "A-1" and depicted in Exhibit "A-2"
attached hereto,(the "Recreational Property" or "Open Space Parcel") representing approximately
6 61 acres of the approximate 10 14 acre former Education Center of the District, more
commonly referred to as the LeBard Property The District is concurrently selling the remaining
approximate 3 53 acres of the LeBard Property for residential use (the "Residential Property") in
accordance with the competitive bidding requirements of Education Code section 17455 et sec,
and consistent with the City's approved entitlements consisting of (a) Tentative Tract Map
Number 17801 for a total of fifteen (15) single-family residential lots, (b) Zoning Map
Amendment No 12-001, and (c) General Plan Amendment No 12-002 (collectively, the "Project
Site Entitlements") Seller and Buyer are sometimes hereinafter referred to individually as a
"Party" and collectively as the "Parties "
The terms and conditions of this Agreement and the instructions to Lawyers Title
Company ("Escrow Holder") with regard to the escrow ("Escrow") created pursuant hereto are as
follows-
1 Purchase and Sale For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell the Recreational Property to Buyer, and Buyer agrees
to purchase the Recreational Property from Seller, upon the terms and conditions herein set forth
2. Purchase Price The purchase price ("Purchase Price") for the Recreational Property shall
be THREE MILLION, ONE HUNDRED SIXTY-EIGHT THOUSAND DOLLARS
($3,168,000) This sum shall be full payment for the Recreational Property and for all damages
of every kind and nature, including, but not limited to, pre -condemnation damages, loss of rental
income and severance damages suffered, any and all claims suffered, or to be suffered, by reason
of the acquisition of the Recreational Property
3 Acknowledgment of Full Benefits and Release
a By execution of this Agreement, Seller, on behalf of itself and its respective
successors and assigns, hereby acknowledges that this Agreement provides full payment for the
acquisition of the Recreational Property by Buyer, and Seller hereby expressly and
unconditionally waives any and all claims for damages, relocation assistance benefits, severance
damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre -
condemnation conduct, or any other compensation or benefits, other than as already expressly
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provided for in this Agreement, it being understood that this is a complete and full settlement of
all acquisition claims, liabilities or benefits of any type or nature whatsoever relating to or in
connection with Buyer's acquisition of the Recreational Property
b This Agreement arose out of Buyer's efforts to acquire the Recreational Property
on a voluntary basis Seller acknowledges and agrees that said purchase price is just
compensation based on the Seller's appraisal price as adjusted by the provisions of the Naylor
Act and includes any and all fixtures and equipment, goodwill (if any) and severance The
Parties acknowledge the Naylor Act allows cities to purchase surplus recreational and open -
space school property at twenty-five percent (25%) of the appraised value, and that not more
than thirty percent (30%) of the total surplus recreational and open -space school acreage owned
by the District may be purchased at the reduced value Buyer and Seller agree that the acreage
was calculated as detailed in Section 2 of the Memorandum of Understanding executed on May
5, 2014 ("MOU") between the Parties Seller, on behalf of itself and its successors and assigns,
hereby fully release Buyer, its successors, agents, representatives, and assigns, and all other
persons and associations, known or unknown, from all claims and causes of action by reason of
any damage which has been sustained, or may be sustained, as a result of Buyer's efforts to
acquire the Recreational Property or to construct works of improvement thereon, or any
preliminary steps thereto Seller further releases and agrees to hold Buyer harmless from any and
all claims by reason of any leasehold interest in the Recreational Property This release shall
survive the Close of Escrow.
c The Parties hereto hereby agree that all rights under Section 1542 of the Civil
Code of the State of California are hereby waived Civil Code Section 1542 provides as follows.
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his/her favor at the time of executing the release, which if
known by him/her must have materially affected his/her settlement with the
debtor "
Notwithstanding the provisions of Civil Code Section 1542, Seller hereby irrevocably and
unconditionally releases and forever discharges the Buyer and each and all of its officers, agents,
directors, supervisors, employees, representatives, and its successors and assigns and all persons
acting by, through, under, or in concert with the Buyer from any and all charges, complaints,
claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected (hereinafter referred to as "claim" or "claims") which Seller at any time heretofore
had or claimed to have or which Seller at any time hereafter may have or claim to have,
including, without limitation, any and all claims related or in any manner incidental to this
transaction
I HAVE READ AND UNDERSTOOD PARAGRAPH 3 Acknowledgment of Full
Benefits and Release
Seller's Initials
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4 Payment of Purchase Price The Purchase Price for the Recreational Property shall be
payable by Buyer as follows Within ten (10) days of the Opening of Escrow, Buyer shall
deposit or cause to be deposited with Escrow Holder, in cash or by a certified or bank cashier's
check made payable to Escrow Holder or a confirmed wire transfer of funds, the first annual
installment of SIX HUNDRED THIRTY-THREE THOUSAND, SIX HUNDRED DOLLARS
($633,600) plus or minus Escrow Holder's estimate of Buyer's closing costs, prorations and
charges payable pursuant to this Agreement All escrow, recording and title insurance costs, if
applicable, are to be paid by Buyer Prior to the first anniversary of the date of Opening, and
annually thereafter until entire Purchase Price is paid, regardless of Close of Escrow, Buyer shall
make four (4) additional installment payments of SIX HUNDRED THIRTY-THREE
THOUSAND, SIX HUNDRED DOLLARS ($633,600) Upon Close of Escrow, any remaining
annual payments shall be made to District
5 Escrow
a Opening of Escrow For purposes of this Agreement, the Escrow shall be deemed
opened on the date Escrow Holder shall have received an executed counterpart of this Agreement
from both Buyer and Seller ("Opening Date") Escrow Holder shall notify Buyer and Seller, in
writing, of the date Escrow is opened and the estimated Closing Date, as defined in Paragraph
5(b), below In addition, Buyer and Seller agree to execute, deliver, and be bound by any
reasonable or customary supplemental escrow instructions of Escrow Holder, or other
instruments as may reasonably be required by Escrow Holder, in order to consummate the
transaction contemplated by this Agreement Any such supplemental instructions shall not
conflict with, amend, or supersede any portion of this Agreement If there is any inconsistency
between such supplemental instructions and this Agreement, this Agreement shall control
b Close of Escrow For purposes of this Agreement, "Close of Escrow" shall be
defined as the date that the Grant Deed, conveying the Recreational Property to Buyer, is
recorded in the Official Records of Orange County, California This Escrow shall close within
thirty (30) days after the completion of all improvements to the Open Space Parcel as set forth
in the MOU and more particularly described in this Paragraph 5 ("Closing Date")
c Use of Escrow Funds During Escrow, District may use Escrow funds for District
improvements related to parking and other Open Space Parcel improvements as agreed to within
Section 4 of the MOU, as more specifically described in Paragraph 6 below (collectively, the
"Park Site Improvements") In the event of any conflict or irregularity between the required
improvements described in the MOU and this Agreement, the description of said improvement(s)
contained in this Agreement shall supercede all prior agreements and understandings, including
the MOU, between the Parties relative to the Park Site Improvements
6 Park Site Improvements District shall cause the successful bidder for the purchase of the
Residential Property following the close of escrow for the Residential Property to design and
construct or cause the construction of the following Park Site Improvements to those portions of
the Residential Property, Recreational Property, and City's adjacent LeBard Park and public
right-of-way (the "City Property") as generally depicted on the site map attached hereto as
Exhibit "B"
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a Within ninety (90) days following the close of escrow for the Residential
Property, the successful buyer of the Residential Property (the "Residential Buyer") shall be
responsible for preparing and submitting to City for its review and approval the plans and
specifications for the construction of the Park Site Improvements Upon approval of the plans
and specifications for the Park Site Improvements by City, the Residential Buyer shall diligently
pursue to completion all such Park Site Improvements
b The Park Site Improvements to be constructed by the Residential Buyer will be
performed on the Residential and Recreational Properties comprising the LeBard Property as
well as on the City Property as required by the Project Site Entitlements as more particularly
described below
(1) Public Right -of -Way Improvements
(a) Grading and construction of street improvements to Craimer Lane
and Warwick Drive adjacent to the Residential and Recreational Properties Improvements to
half section of a portion of Craimer Lane and Warwick Drive to include the curb and gutter
which will be removed and replaced These improvements include the entry returns, sewer and
water laterals for the Residential Property and a new driveway into the City Park parking lot,
sewer and water laterals and new landscaped parkways with curb separated sidewalks (+/- 0 4
acres) Installation of "under walk drains" on Cynthia Drive
(2) LeBard Property Park Site Improvements
(a) Construction of proposed landscape planter and water quality basin
(0 5 acres) on the Residential Property as further described in Paragraph 6c(1) below
(b) Construction of restroom/concession/storage building (1,500 sf)
(the "Multi -Purpose Building") in support of use of sports fields on Recreational Property
(c) Construction of paved area surrounding the Multi -Purpose
Building (+/- 2,500 so on Recreational Property
Recreational Property
Recreational Property
(d) Construction of a portion of proposed parking lot (+/- 450 sf) on
(e) Construction of proposed drainage swale (+/- 0 3 acres) on
(f) Relocation of bullpen (+/- 1,000 sf) on Recreational Property
(g) Construction of a portion of water quality basin and swale (+/- 350
sf) on Recreational Property
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(h) Replacement and upgrade of the existing walkways within the
sport field areas to ADA accessible walkways and the relocation of bleachers (+/- 0 5 acres) on
Recreational Property ONLY during the August through February off-season for the Sea View
Little League when the sports fields are not being used
(3) City Park Site Improvements
(a) The existing City Park parking lot will be removed, replaced and
restriped to provide the appropriate ADA accessible parking spaces and to surface drain to the
water quality basin being constructed by the Residential Buyer in accordance with Paragraph
6b(1)(a) (+/- 0 4 acres)
(b) Grading and construction of ADA walkways and landscape
improvements to the existing City Park (+/- 0.4 acres)
(c) Grading and construction of a water quality basin and swale to
treat run-off from the City Park parking lot (+/- 0 1 acres)
c Formation of Homeowners Association Following the close of escrow on the
Residential Property and upon recordation of Final Map 17801, the Residential Buyer shall be
required to create a homeowners association ("H O A.") in compliance with the Davis -Stirling
Common Interest Development Act, commencing with California Civil Code Section 4000, for
the purpose of maintaining the common areas within the Residential Property, including, but not
limited to
(1) Water Quality Basin Area Following the close of escrow for the
Residential Property and concurrent with the recordation of Final Map 17801 or issuance of the
first grading permit for the Residential Property, the Residential Buyer shall construct a water
quality basin, drainage swale and "under sidewalk drain" on the southerly portion of the
Residential Property and a portion of the Recreational Property as depicted on Exhibit "B" to
serve the water quality for Residential Property Buyer or HOA shall be responsible for the
maintenance of the Water Quality Basin
d Construction Improvements on City Property Following the close of
escrow on the Residential Property and prior to the commencement of any residential building
construction activities following the recordation of Final Map 17801, the Residential Buyer shall,
at its sole cost and expense, construct or cause the construction of those City Park Site
Improvements described in Paragraph 6b(3) above (collectively, the "City Park Site
Improvements) City shall grant the Residential Buyer a Temporary Construction Easement in
the form substantially attached hereto at Exhibit "C" authorizing the Residential Buyer to
construct the City Park Site Improvements (the Temporary Construction Easement")
e Construction Improvements on LeBard Property Following the close of
escrow on the Residential Property and prior to the commencement of any residential building
construction activities following the recordation of Final Map 17801, the Residential Buyer shall
be required, at its sole cost and expense, construct the LeBard Property Park Site Improvements
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described in Paragraph 6b(2) above (collectively, the "LeBard Property Park Site
Improvements) District shall grant the Residential Buyer a Temporary Construction Easement
in the form substantially attached hereto at Exhibit "D" authorizing the Residential Buyer to
construct those LeBard Property Park Site Improvements located on the Recreational Property
(the "District Temporary Construction Easement").
7 Conditions of Title It shall be a condition to the Close of Escrow and a covenant of
Seller that title to the Recreational Property shall be conveyed to Buyer by Seller by the Grant
Deed, subject only to the following Approved Conditions of Title ("Approved Condition of
Title")
a A lien to secure payment of real estate taxes, not delinquent
b The lien of supplemental taxes assessed pursuant to Chapter 3 5, commencing
with Section 75 of the California Revenue and Taxation Code ("Code"), but only to the extent
that such supplemental taxes are attributable to the transaction contemplated by this Agreement
Seller shall be responsible for, and hereby indemnifies Buyer and the Recreational Property
against, any supplemental taxes assessed pursuant to the Code, to the extent that such taxes relate
to events (including, without limitation, any changes in ownership and/or new construction)
occurring prior to the Close of Escrow
c Matters affecting the Approved Condition of Title created by or with the written
consent of Buyer
d Exceptions which are disclosed by the Report described in Paragraph 9a(1) hereof
and which are approved or deemed approved by Buyer in accordance with Paragraph 9a(1)
hereof.
Seller covenants and agrees that during the term of this Escrow, Seller will not cause or
permit title to the Recreational Property to differ from the Approved Condition of Title described
in this Paragraph 7 Any liens, encumbrances, easements, restrictions, conditions, covenants,
rights, rights -of -way, or other matters affecting the Approved Condition of Title which may
appear of record or be revealed after the date of the Report described in Paragraph 9a(1) below,
shall also be subject to Buyer's approval and must be eliminated or ameliorated to Buyer's
satisfaction by Seller prior to the Close of Escrow as a condition to the Close of Escrow for
Buyer's benefit Buyer hereby objects to all liens evidencing monetary encumbrances affecting
the Recreational Property (other than liens for non -delinquent property taxes) and Seller agrees
to cause all such liens to be eliminated at Seller's sole cost and expense prior to the Closing Date
8 Title Policy Title shall be evidenced by the willingness of the Title Company to issue its
CLTA Standard Form Policy or Binder of Title Insurance ("Title Policy") in the amount of the
Purchase Price showing title to the Recreational Property vested in Buyer subject only to the
Approved Condition of Title
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9 Conditions to Close of Escrow
a Conditions to Buyer's Obligations_ The Close of Escrow and Buyer's obligation
to consummate the transaction contemplated by this Agreement are subject to the satisfaction of
the following conditions for Buyer's benefit on or prior to the dates designated below for the
satisfaction of such conditions
(1) Preliminary Title Report and Exceptions Immediately after escrow is
opened as provided herein, Buyer agrees to cause Lawyers Title Company to issue a Preliminary
Title Report relating to the Recreational Property Within fifteen (15) days after escrow has been
opened, the Buyer will cause Lawyers Title Company to issue an Amendment to Escrow
Instructions, which indicates those title exceptions that the Buyer will accept Seller will have
ten (10) days after receipt of such amendment to review and approve it In the event of non -
approval, escrow will fail and each party will instruct Lawyers Title Company to cancel the
escrow
(2) Representations Warranties and Covenants of Seller Seller shall have
duly performed each and every agreement to be performed by Seller hereunder and Seller's
representations, warranties, and covenants set forth in Paragraph 15 shall be true and correct as
of the Closing Date
(3) No Material Changes At the Closing Date, there shall have been no
material adverse changes not otherwise provided for in this agreement or mutually agreed to by
both Parties in the physical or financial condition of the Recreational Property
(4) Inspections and Studies On or before thirty (30) days after Opening Date
("Due Diligence Period"), Buyer shall have approved the results of any and all inspections,
investigations, tests and studies (including, without limitation, investigations with regard to
governmental regulations, engineering tests, soil and structure investigation and analysis, seismic
and geologic reports) with respect to the Recreational Property (including all structural and
mechanical systems and leased areas) as Buyer may elect to make or obtain The failure of Buyer
to disapprove said results on or prior to the expiration of the Due Diligence Period shall be
deemed to constitute Buyer's approval of the results The cost of any such inspections, tests and
studies shall be borne by Buyer During the term of this Escrow, Buyer, its agents, contractors
and subcontractors shall have the right to enter upon the Recreational Property, at reasonable
times during ordinary business hours, to make any and all inspections and tests as may be
necessary or desirable in Buyer's sole judgment and discretion Buyer shall use care and
consideration in connection with any of its inspections Buyer shall indemnify and hold Seller
and the Recreational Property harmless from any and all damage arising out of, or resulting from
the negligence of Buyer, its agents, contractors and/or subcontractors in connection with such
entry and/or activities upon the Recreational Property
(5) Governing Body Approval The completion of this transaction, and the
escrow created hereby, is contingent upon the specific acceptance and approval of the Buyer by
action of the Buyer's City Council and of the Seller by action of the Seller's Board of Trustees
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b Conditions to Seller's Obligation For the benefit of Seller, the Close of Escrow
shall be conditioned upon the occurrence and/or satisfaction of each of the following conditions
(or Seller's waiver thereof, it being agreed that Seller may waive any or all of such conditions)
(1) Buyer's Obligations Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer, and
(2) Buyer's Representations All representations and warranties made by
Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow
10 Deposits by Seller At least one (1) business day prior to the Close of Escrow, Seller
shall deposit or cause to be deposited with Escrow Holder the following documents and
instruments
a Seller's Certificate Federal A Certificate of Nonforeign Status (Seller's
Certificate), duly executed by Seller in the form attached hereto as Exhibit "E "
b California Withholding Exemption Certificate A California Withholding
Exemption Certificate (or in the event the Seller is a non -California resident, a certificate issued
by the California Franchise Tax Board) pursuant to the Revenue and Taxation Code Sections
18805 and 26131, as may be amended, stating either the dollar amount of withholding required
from Seller's proceeds or that Seller is exempt from such withholding requirement
c Grant Deed The Grant Deed and Agreement conveying the Recreational
Property to Buyer substantially in the form attached as Exhibit "F" duly executed by Seller,
acknowledged and in recordable form
11 Deposits by Buyer Buyer shall deposit, or cause to be deposited with Escrow Holder,
the funds which are to be applied toward the payment of the Purchase Price in the amounts and at
the times designated in Paragraph 4 above (as reduced or increased by the prorations, debits and
credits hereinafter provided)
12 Costs and Expenses The cost and expense of the Title Policy attributable to CLTA
coverage shall be paid by Buyer The escrow fee of Escrow Holder shall be paid by Buyer
Buyer shall pay all documentary transfer taxes, if any, payable in connection with the recordation
of the Grant Deed The amount of such transfer taxes shall not be posted on the Grant Deed, but
shall be supplied by separate affidavit Buyer shall pay the Escrow Holder's customary charges
to Buyer and Seller for document drafting, recording, and miscellaneous charges If, as a result
of no fault of Buyer or Seller, Escrow fails to close, Buyer shall pay all of Escrow Holder' s fees
and charges Penalties for prepayment of bona fide obligations secured by any existing deed of
trust or mortgage shall be waived pursuant to Civil Code Procedure Section 1265 240
13, Prorations The following prorations shall be made between Seller and Buyer on the
Closing Date, computed as of the Closing Date
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a Taxes. The Parties hereto acknowledge that both Seller and Buyer are public
entities and are exempt from payment of real property taxes There will be no proration of taxes
through Escrow After the Close of Escrow, the Buyer will file any necessary documentation
with the County Tax Collector/Assessor to maintain the property tax exemption
b No Rental Pro -rations Pursuant to Paragraph 23(n) Seller warrants that there are
no tenants or written or oral leases on all or any portion of the Recreational Property and the
Escrow Holder is hereby instructed not to perform any rental pro -rations at the Close of Escrow
14 Disbursements and Other Actions by Escrow Holder Upon the Close of Escrow, the
Escrow holder shall promptly undertake all of the following in the manner indicated
a Prorations Prorate all matters referenced herein, based upon the statement
delivered into Escrow signed by the parties
b Recording Cause the Grant Deed and any other documents, which the parties
hereto may mutually direct, to be recorded in the Official Records of Orange County, California,
in the order set forth in this subparagraph Escrow Holder is instructed not to affix the amount of
documentary transfer tax on the face of the Deed, but to supply same by separate affidavit
c Funds. Disburse from funds deposited by Buyer with Escrow Holder toward
payment of all items chargeable to the account of Buyer, pursuant thereto in payment of such
costs, and disburse the balance of such funds, if any, to Buyer
d Documents to Buyer Deliver the Seller's Certificate and Bill of Sale, executed by
Seller, and, when issued, the Title Policy to Buyer
e Pay demands of existingLlienholders. Escrow Holder is hereby authorized and
instructed to cause the reconveyance, or partial reconveyance, as the case may be, of any such
monetary exceptions to Buyer's title to the Recreational Property at or prior to the Close of
Escrow
15 Sellers' Representations and Warranties In consideration of Buyer entering into this
Agreement, and as an inducement to Buyer to purchase the Recreational Property, Seller makes
the following representations and warranties, each of which is material and is being relied upon
by Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to
Buyer's obligations hereunder)
a Authorization This Agreement has been duly and validly authorized, executed
and delivered by Seller, and no other action is requisite to the execution and delivery of this
Agreement by Seller
b Threatened Actions There are no actions, suits or proceedings pending against,
or, to the best of Seller's knowledge, threatened or affecting the Recreational Property in law or
equity
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c Third Party Consents No consents or waivers of, or by, any third party are
necessary to permit the consummation by Seller of the transactions contemplated pursuant to this
Agreement
d No Violation of Law To the best of Seller's knowledge, there is no violation of
law or governmental regulation by Seller with respect to the Recreational Property
e Condemnation There is no pending, or, to the best of Seller's knowledge,
threatened proceedings in eminent domain or otherwise, which would affect the Recreational
Property or any portion thereof
f Compliance with Law To the best of Seller's knowledge, all laws, ordinances,
rules, and requirements and regulations of any governmental agency, body, or subdivision
thereof bearing on the Recreational Property have been complied with by Seller
g Agreements There are no agreements (whether oral or written) affecting or
relating to the right of any party with respect to the possession of the Recreational Property, or
any portion thereof, which are obligations which will affect the Recreational Property, or any
portion thereof subsequent to the recordation of the Grant Deed, except as may be reflected in
the Condition of Title, which shall have been approved by Buyer pursuant to the terms of this
Agreement
h Documents To the best of Seller's knowledge, all documents delivered to Buyer
and Escrow Holder pursuant to this Agreement are true and correct copies of originals, and any
and all information supplied to Buyer by Seller is true and accurate
i Licenses and Permits To the best of Seller's knowledge, Seller has acquired all
licenses, permits, easements, rights -of -way, including without limitation, all building and
occupancy permits from any governmental authority having jurisdiction
J Hazardous Substances Except as revealed by Seller to Buyer herein, Seller has
no actual knowledge that there are hazardous substances (as defined below) in existence on or
below the surface of the Recreational Property, including without limitation, contamination of
the soil, subsoil or groundwater, which constitutes a violation of any law, rule, or regulation of
any governmental entity having jurisdiction thereof, or which exposes Buyer to liability to third
parties Seller has not used the Recreational Property, or any portion thereof, for the production,
disposal, or storage of any hazardous substances, and Seller has no actual knowledge that there
has been such prior use of the Recreational Property, or any portion thereof, or that there has
been any proceeding or inquiry by any governmental authority with respect to the presence of
such hazardous substances on the Recreational Property or any portion thereof Without limiting
the other provisions of this Agreement, Seller shall cooperate with Buyer's investigation of
matters relating to the foregoing provisions of this paragraph, and provide access to, and copies
of, any data and/or documents dealing with potentially hazardous substances used at the
Recreational Property and any disposal practices followed Seller agrees that Buyer may, with
Seller's prior approval, make inquiries of governmental agencies regarding such matters, without
liability to Seller for the outcome of such discussions For purposes of this Agreement, the term
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"hazardous substances" means (i) any substance, product, waste, or other material of any nature
whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive
Environment Response, Compensation and Liability Act (CERCLA), 42 United States Code
Section 9601 et seq , the Hazardous Material Transportation Conservation and Recovery Act, 42
United States Code Section 1801 et seq , the Resources Conservation and Recovery Act, 42
United States Code Section 6901 et seq, the Clean Water Act, 33 United States Code Section
1251 et seq , the Toxic Substances Control Act, 15 United States Code Section 2601 et seq , the
California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq , the
California Hazardous Substance Account Act, Health and Safety Code Section 25330 et seq , the
California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section
25249 5 et seq , California Health and Safety Code Section 25280 et seq (Underground Storage
or Hazardous Substances), the California Hazardous Waste Management Act, Health and Safety
Code Section 25170 1 et seq , California Health and Safety Code Section 25501 et seq
(Hazardous Materials Release Response Plans and Inventory), or the California Porter -Cologne
Water Quality Control Act, Water Code Section 13000 et seq , all as amended (the above -cited
California state statue are hereinafter collectively referred to as "the State Toxic Substances
Laws") or any other federal, state, or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous or toxic substance hereafter in effect; (ii) any substance, product,
waste, or other material of any nature whatsoever which may give rise to liability under any of
the above statutes or under any statutory or common law theory based on negligence, trespass,
intentional tort, nuisance or strict liability or under any reported decisions of a state or federal
court, (iii) petroleum or crude oil other than petroleum and petroleum products which are
contained within regularly operated motor vehicles, and (iv) asbestos
k Indemnity Seller agrees to indemnify, defend with counsel selected by Buyer, ,
protect and hold harmless Buyer, its City Council members, its directors, officers, staff,
employees, agents, contractors, assigns, and any successor or successors to Buyer's interest from
and against all claims, actual damages (including, but not limited to, special and consequential
damages), punitive damages, injuries, costs, response costs, losses, demands, debts, liens,
liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges,
penalties, and expenses (including, but not limited to, attorneys' and expert witness' fees and
costs incurred in connection with defending against any of the foregoing or in enforcing this
indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, the
Recreational Property, or any indemnified party directly or indirectly arising from or attributable
to (i) any breach by Seller of any of its agreement warranties or representations set forth in this
Agreement, or (n) any repair, cleanup or detoxification, or preparation and implementation of
any removal, remedial, response, closure, or other plan concerning any hazardous substance on,
under, or about the Recreational Property, regardless of whether undertaken due to governmental
action. To the fullest extent permitted by law, the foregoing indemnification shall apply
regardless of the fault, active or passive negligence, breach of warranty or contract of Buyer.
The foregoing indemnity is intended to operate as an agreement pursuant to CERCLA Section
107(e), of 42 United States Code Section 9607(E), and California Health and Safety Code
Section 25364, to insure, protect, hold harmless and indemnify Buyer from any liability pursuant
to such sections
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I Pollutants. To the best of Seller's knowledge, no pollutants or waste materials
from the Recreational Property have ever been discharged by Seller into any body of water, and
Seller has no actual knowledge of any such pollution emission by any other person or entity
in Waste Disposal To the best of Seller's knowledge, no portion of the Recreational
Property has ever been used by Seller as a waste storage or disposal site, and Seller is not aware
of any such prior uses
n No Notices Seller has received no written notice of any change contemplated in
any applicable laws, ordinances or restrictions, or any judicial or administrative action, or any
action by adjacent landowners, or natural or artificial conditions upon the Recreational Property
which would prevent, impede, limit, or render more costly Buyer's contemplated use of the
Recreational Property
16 Buyer's Representations and Warranties In consideration of Seller entering into this
Agreement, and as an inducement to Seller to sell the Recreational Property to Buyer, Buyer
makes the following representations and warranties, each of which is material and is being relied
upon by Seller (the continued truth and accuracy of which shall constitute a condition precedent
to Seller's obligations hereunder).
a This Agreement and all documents executed by Buyer under this Agreement
which are to be delivered to Seller are, or at the time of Close of Escrow will be, duly authorized,
executed, and delivered by Buyer, and are, or at the Close of Escrow will be legal, valid, and
binding obligations of Buyer, and do not, and at the Close of Escrow will not violate any
provisions of any agreement orjudicial order to which Buyer is a party or to which it is subject
b The representations and warranties of Buyer set forth in this Agreement shall be
true on and as of the Close of Escrow as if those representations and warranties were made on
and as of such time
17 Damage or Condemnation Prior to Closing Seller shall promptly notify Buyer of any
knowledge by Seller of casualty to the Recreational Property or any condemnation proceeding
commenced prior to the Close of Escrow If any such damage or proceeding relates to, or may
result in, the loss of any material portion of the Recreational Property, Seller or Buyer may, at
their option, elect either to
(a) terminate this Agreement, in which event all funds deposited into Escrow by
Buyer shall be returned to Buyer and neither party shall have any further rights or obligations
hereunder, or
(b) continue the Agreement in effect, in which event upon the Close of Escrow Buyer
shall be entitled to any compensation, awards, or other payments or relief resulting from such
casualty or condemnation proceeding
18 Notices All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid,
Page 12 of 60
19252v1 / HBC 76
return receipt requested, telegraphed, delivered, or sent by telex, telecopy, or cable, and shall be
deemed received upon the earlier of (a) if personally delivered, the date of delivery to the address
of the person to receive such notice, (b) if mailed, four business days after the date of posting by
the United States post office, (c) if given by telegraph or cable, when delivered to the telegraph
company with charges prepaid, or (d) if given by telex or facsimile, when sent Any notice,
request, demand, direction, or other communication sent by cable, telex, or facsimile must be
confirmed within 48 hours by letter mailed or delivered in accordance with the foregoing
The Buyer's mailing address is
City of Huntington Beach
Attn: City Manager
2000 Main Street, P O Box 190
Huntington Beach, CA 92648
The Seller's mailing address is
Huntington Beach City School District
17011 Beach Boulevard, Suite 560
Huntington Beach, CA 92647
Attn. Assistant Superintendent, Administrative Services
Notice of change of address shall be given by written notice in the manner detailed in this
paragraph Rejection or other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to constitute receipt of the notice,
demand, request, or communication sent
19 Legal Fees In the event suit is brought by either party to construe, interpret and/or
enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each
party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to
recover its attorney's fees from the non -prevailing party
20 Assignment Neither Party may assign, transfer or convey its rights or obligations under
this Agreement without the prior written consent of the other Party, and then only if that Party's
assignee assumes in writing all of that Party's obligations hereunder, provided, however, neither
Party shall in any event be released from its obligations hereunder by reason of such assignment
21 Indemnification Each Party hereby agrees to indemnify, defend and hold harmless the
other Party from and against any and all obligations, liabilities, claims, liens, encumbrances,
losses, damages, costs and expenses, including without limitation, attorneys' fees, whether direct,
contingent, or consequential, incurred by that Party relating to the Recreational Property and
arising or accruing from acts, occurrences, or matters that take place on or before the Close of
Escrow or resulting from any breach by the defaulting Party of its representations, warranties
and covenants contained in this Agreement
Page 13 of 60
19252v 1 / HBC 76
22 Brokerage Commissions Neither Party has had any contact or dealings regarding the
Recreational Property, or any communication in connection with the subject matter of this
transaction, through any real estate broker or other person who can claim a right to a commission
or finder's fee in connection with the sale contemplated herein In the event that any broker or
finder claims a commission or finder's fee based upon any contact, dealings or communication,
the party through whom the broker or finder makes its claim shall be responsible for said
commission or fee and all costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred by the other Party in defending against the same The Party through
whom any other broker or finder makes a claim shall hold harmless, indemnify and defend the
other Party hereto, its successors and assigns, agents, employees, officers and directors, and the
Recreational Property from and against any and all obligations, liabilities, claims, demands,
liens, encumbrances and losses (including, without limitation, attorneys' fees), whether direct,
contingent or consequential, arising out of, based on, or incurred as a result of such claim The
provisions of this Paragraph shall survive the termination of this Agreement
23 Miscellaneous
a. Survival of Covenants The covenants, representations and warranties of both
Buyer and Seller set forth in this Agreement shall survive the recordation of the Grant Deed and
the Close of Escrow
b. Required Actions of Buyer and Seller. Buyer and Seller agree to execute such
instruments and documents and to diligently undertake such actions as may be required in order
to consummate the purchase and sale herein contemplated, and shall use their best efforts to
accomplish the Close of Escrow in accordance with the provisions hereof
c Time of Essence Time is of the essence of each and every term, condition,
obligation, and provision hereof
d Counterparts This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
e Captions Any captions to, or headings of, the paragraphs or subparagraphs of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof
f. No Obligations to Third Parties Except as otherwise expressly provided herein,
the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the Parties hereto, to any person or entity other than the Parties hereto
g Exhibits and Schedules The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference
Page 14 of 60
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h Amendment to this Agreement The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the Parties hereto
i Waiver The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision hereof
J Applicable Law This Agreement shall be governed by and construed in
accordance with the laws of the State of California, with the exception of definitions to be
construed under Federal laws cited in Paragraph 150)
k Fees and Other Expenses Except as otherwise provided herein, each of the
parties shall pay its own fees and expenses in connection with this Agreement
1 Entire Agreement Except for Section 2 of the MOU, this Agreement supersedes
any prior agreements, negotiations, and communications, oral or written, and contains the entire
agreement between Buyer and Seller as to the subject matter hereof No subsequent agreement,
representation, or promise made by either Party hereto, or by or to an employee, officer, agent or
representative of either party shall be of any effect unless it is in writing and executed by the
Party to be bound thereby
m Successors and Assigns This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the Parties hereto
n Leases Seller warrants that there are no tenants or written or oral leases on all or
any portion of the Recreational Property and Seller further agrees to hold Buyer harmless and
reimburse Buyer for any and all of its losses and expenses, including relocation assistance costs,
occasioned by reason of any lease of said property held by any tenant of Seller
Page 15 of 60
19252vl / HBC 76
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written
DATED
Seller•
HUNTINGTON BEACH CITY SCHOOL
DISTRICT, a California public school
district
APPROVED AS TO FORM
PARKER & COVERT LLP
Douglas N. Yeoman
Attorney for District
DATED Buyer
CITY OF HUNTINGTON BEACH
A California municipal corporation
Page 16 of 60
erk
19252v1 / HBC 76
EXHIBIT "A-V
Legal Description of Property
Page 17 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RECREATIONAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows -
Beginning at a point on the south line of the northwest quarter of said Section 8, said
point also being common to the southeast corner of Lot 66, Tract 5128 and the northeast
corner of Lot 11, Tract 6003 in the City of Huntington, County of Orange, California,
said point also being the Point of Beginning (POB), thence along the easterly boundary of
said Tract 5128 North 1 ° 15' 10" West, 376 43' to a point located on the southerly right of
way for Crailet Drive, thence along said right of way North 88°44'50" East, 15.00',
thence South 1 ° 15' 10" East, 110 00' along a property line common to Lot 61 of Tract
5128, thence along the southerly boundary of Tract 5128 North 86°48'20" East, 128 71',
thence North 82°12'00" East, 129 35', thence North 77°34'00" East, 66.28', thence
leaving said boundary South 1°20'20" East, 336.03', thence South 47°36'14" West,
10 62', thence South 1°25' 14" East, 26.61', thence North 88°22'42" East, 48.67', thence
South 57°09' 16" East, 11.60', thence North 88°34'46" East, 154 67', thence N 59°23'41"
East, 10.25', thence North 88°37'33" East, 77 21', North 21°48'12" East, 50 91', thence
North 61°55'22" West, 12.65', thence North 1°55'36" West, 102 57', thence North
47°49'03" East, 32 27', thence North 70°17'17" East, 68.36', thence North 88°36'01"
East, 9.17', thence South 1°04'30" East, 128 96' to the north line of the said quarter
section, thence North 88°55'31" East, 30 01' along the north line of the said quarter
section, thence South 1°15'08" East, 267 00' to the centerline of Cynthia Drive, thence
South 88°55'31" West, 764 52' along said centerline, thence North 1°15'08" West,
267 00' to the POB
See Exhibit "A-2" for a plat depicting the above described land
The parcel contains approximately 6 61 acres.
All dimensions and areas are based on record information and can vary from
measurements on the ground
Page 18 of 60
Q�yOFESS !p�
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19252v1 / HBC 76
EXHIBIT "A-2"
Map of Property
Page 19 of 60
19252v1 / HBC 76
EXHIBIT "A-211
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30054 Hamilton Trail, Traiucc Cary CA9 79
Page 20 of 60
SCALE 1"=120'
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19252v1 / HBC 76
EXHIBIT "B"
Site Map of Park Site Improvements
Page 21 of 60
19252vl / HBC 76
EXHIBIT "B"
I ,
RESIDENTiAL
PRQPFRTY
MULTI -PURPOSE BLDG
I
WATER QUALITY BASIN
I
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Page 22 of 60
PARKING LOT _
ATER QUALITY BASIN & SWALE
CITY
c,TE
t.'
19252v I / HBC 76
EXHIBIT "C"
City Temporary Construction Easement
Page 23 of 60
19252v1 / HBC 76
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (the
"Agreement") is made and entered into as of the _ day of , 2016, by
and between CITY OF HUNTINGTON BEACH, a California municipal corporation
("Grantor"), and ("Grantee").
A. Grantor is the owner of that certain approximate five (5) acre piece of real
property commonly referred to as LeBard Park, more particularly depicted on Schedule 1
attached hereto and by this reference made a part hereof (referred to as "Grantor
Property" or "City Park")
B. Grantee is the owner of that certain approximate three and fifty-three
hundredths (3 53) acre piece real property located adjacent to the Grantor Property, more
particularly described on Schedule 2 and depicted on Schedule 3 attached hereto and by
this reference made a part hereof (the "Residential Property").
C Grantee, as part of its development of the Residential Property, is required
to construct certain improvements to the Grantor Property (collectively, the "City Park
Site Improvements")
D Grantor desires to grant to Grantee, and Grantee desires to receive from
Grantor, in accordance with the terms and provisions set forth herein, a temporary
easement over and upon the Grantor Property, to enable Grantee to construct the City
Park Site Improvements.
NOW, THEREFORE, Grantor hereby agrees as follows
1 Grant of Easement Grantor hereby grants to Grantee, subject to the terms
and provisions set forth herein, a temporary easement over and upon the Grantor Property
for the following purposes.
(a) Improvements to half section of a portion of Craimer Lane and
Warwick Drive to include the curb and gutter which will be removed and replaced
These improvements include the driveway for the Residential Property and a new
driveway into the City Park parking lot and new landscaped parkways with curb
separated sidewalks (0 4 acres)
(b) The existing City Park parking lot will be removed, replaced and
restriped to provide the appropriate ADA accessible parking spaces and to surface drain
to the water quality basin being constructed by Buyer (0 4 acres)
Page 24 of 60
19252v1 / HBC 76
(c) Grading and construction of ADA walkways and landscape
improvements to the existing City Park (0 4 acres)
(d) Grading and construction of a water quality basin and Swale to treat
run-off from the City Park parking lot (0.1 acres)
2 Term The term of this Temporary Construction Easement Agreement shall
commence on the date hereof and shall terminate on the earlier to occur of (1) the date on
which the City Park Site Improvements have been satisfactorily completed and accepted
by Grantor, and (n) the date that is twelve (12) months after the recordation of Final Map
17801 for the Residential Property
3 Liens Grantee shall not suffer or permit to be enforced against the Grantor
Property, or any part thereof, any mechanics', materialmen's, contractors' or
subcontractors' liens or any claim for damage arising from or related to Grantee's
activities on Grantor's Property
4 Insurance. In addition to the workers' compensation and employer's
liability insurance and Grantee's covenant to defend, hold harmless and indemnify
Grantor, Grantee shall obtain and furnish to City, a policy of general public liability
insurance, including motor vehicle coverage covering Grantee's activities on Grantor's
Property This policy shall indemnify Grantee, its officers, employees and agents while
acting within the scope of their duties, against any and all claims arising out of or in
connection with Grantee's activities on Grantor's Property, and shall provide coverage in
not less than the following amount combined single limit bodily injury and property
damage, including products/completed operations liability and blanket contractual
liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided
under a form which includes a designated general aggregate limit, the aggregate limit
must be no less than One Million Dollars ($1,000,000) for Grantee's activities on
Grantor's Property. This policy shall name City, its officers, elected or appointed
officials, employees, agents, and volunteers (the "Additionally Insured Parties") as
Additional Insureds, and shall specifically provide that any other insurance coverage
which may be applicable to Grantee's activities on Grantor's Property shall be deemed
excess coverage and that Grantee's insurance shall be primary and non-contributory with
any other valid and collectible insurance or self-insurance available to the Additionally
Insured Parties Any available insurance proceeds in excess of the minimum coverage
amount specified herein shall be available to the Additionally Insured Parties. All
coverage available to Grantee shall also be available to the Additionally Insured Parties
Under no circumstances shall said above -mentioned insurance contain a
self -insured retention without the express written consent of City, however an insurance
policy "deductible" of $5,000 is permitted
Page 25 of 60
19252v1 / HBC 76
Grantee shall be responsible for causing all subcontractors to maintain the
same types and limits of insurance coverage as that required of Grantee by this
Agreement
Prior to commencing any activities on Grantor's Property, Grantee shall
furnish to Grantor certificates of insurance subject to approval of the City Attorney
evidencing the foregoing insurance coverage as required by this Agreement; the
certificates shall.
(a) provide the name and policy number of each carrier and policy;
(b) state that the policy is currently in force, and
(c) promise to provide that such policies will not be canceled or
modified without thirty (30) days' prior written notice of Grantor.
Grantee shall maintain the foregoing insurance coverage in force at all
times while performing any activities on Grantor's Property
The requirement for carrying the foregoing insurance coverage shall not
derogate from the Grantor's defense, hold harmless and indemnification obligations as set
forth under this Agreement Grantor or its representatives shall at all times have the right
to demand the original or a copy of all policies of insurance Grantee shall pay, in a
prompt and timely manner, the premiums on all insurance hereinabove required
Grantee shall provide a separate copy of the additional insured endorsement
to each of Grantee's insurance policies, naming the Additionally Insured Parties as
Additional Insureds, to the City Attorney for approval prior to performing any activities
on Grantor's Property A statement on an insurance certificate will not be accepted in
lieu of the actual endorsement.
Grantee shall require all subcontractors to name Grantor, its officers,
employees and agents, and the Additionally Insured Parties as Additional Insureds on all
subcontractor insurance policies using ISO form number CG 20 38 04 13 or coverage at
least as broad. Grantee shall verify that every subcontractor policy endorsement
complies with the requirements set forth herein
5 Indemnity Grantee hereby agrees to defend, indemnify and hold
harmless Grantor and its officers, employees and agents from any actions, suits, liens,
claims, damages, expenses, losses and liabilities (including reasonable attorneys' fees and
expenses) ( collectively, "Claims") arising from or related to Grantee's use of Grantor's
Property pursuant to the terms of this Agreement, provided, however, that the foregoing
Page 26 of 60
19252v1 / HBC 76
indemnity shall not apply to any Claims arising from or related to the acts or omissions of
Grantor on or with respect to Grantor's Property
6. Notices Any approval, disapproval, demand, document or other notice
("notice") which any party may desire to give to any other party shall be in writing and
shall be delivered by hand delivery, by overnight courier, or by U.S. certified or
registered mail (postage prepaid) and shall be deemed received when receipted for at the
addressee's place of business (in the case of hand delivery), on the date of delivery
confirmed by the overnight courier service (in the case of overnight courier delivery), and
two (2) days after being posted with the U S. mail (in the case of certified or registered
mail delivery). All such notices shall be delivered to the following addresses (or at any
other address as a party may later designate):
If to Grantor City of Huntington Beach
2000 Main Street
Huntington Beach, California 92648
Attn• City Manager
If to Grantee
7. Governing Law. The laws of the State of California shall govern the
validity, enforcement, and interpretation of this Agreement.
8 Modifications, Waiver. Except as otherwise provided herein, this
Agreement may be amended or modified, or any of the terms hereof waived, except by a
written instrument executed by the party against whom enforcement of the modification
or waiver is sought
9 Further Acts In addition to the acts recited in this Agreement to be
performed by Grantor and Grantee, Grantor and Grantee agree to perform or cause to be
performed any and all such further acts as may be reasonably necessary to consummate
the transactions contemplated hereby
Page 27 of 60
19252vI / HBC 76
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement
as of the date set forth above.
CITY OF HUNTINGTON BEACH
By
Name
Its
GRANTEE:
By -
Name
Its
By
Name -
Its.
Page 28 of 60
]9252v] / HBC 76
SCHEDULEI
SITE MAP OF GRANTOR PROPERTY
Page 29 of 60
19252v 1 / HBC 76
Page 30 of 60
19252vI / HBC 76
SCHEDULE2
DESCRIPTION OF RESIDENTIAL PROPERTY
Page 31 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RESIDENTIAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows:
Beginning at the southeasterly corner of Lot 50 of Tract 5128, City of Huntington,
County of Orange, California (Bk 211, pg 23) , said point also being located on the
westerly right of way for Craimer Lane and the Point of Beginning (POB), thence along
the southerly boundary of said Tract 5128 South 76° 13' 49" West, 122 76', thence South
69°34'26" West, 127.32', thence South 72°56'00" West, 129 35', thence South
77°34'00" West, 63 09', thence leaving said boundary South 1°20'20" East, 336.03',
thence South 47°36' 14" West, 10.62', thence South 1 °25' 14" East, 26 61', thence North
88°22'42" East, 48 67', thence South 57°09'16" East, 11 60', thence North 88°34'46"
East, 154.67', thence N 59°23'41" East, 10 25', thence North 88°37'33" East, 77.21',
North 21 °48' 12" East, 50 91', thence North 61 °55'22" West, 12 65', thence North
1°55'36" West, 102.57', thence North 47°49'03" East, 3227', thence North 70°17'17"
East, 68 36', thence North 88°36'01" East, 9 17', thence North 1°04'30" West, 76.10' to
a point on the westerly right of way for Craimer Lane said point also being the beginning
of a tangent curve concave southeasterly with a radial bearing of North 88°55'30" East,
820.00', thence northerly along said curve 214.09' to the POB ending with a radial
bearing of North 76°06'58" West
The parcel contains approximately 3 53 acres
All dimensions and areas are based on record information and can vary from
measurements on the ground
Page 32 of 60
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19252vl / HBC 76
SCHEDULE3
SITE MAP OF RESIDENTIAL PROPERTY
Page 33 of 60
19252v1 / HBC 76
SCHEDULE 3
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Page 34 of 60
SCALEI"=120'
19252v1 / HBC 76
EXHIBIT "D"
District Temporary Construction Easement Agreement
Page 35 of 60
19252vl / HBC 76
y
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (the
"Agreement") is made and entered into as of the day of , 2016, by
and between HUNTINGTON BEACH CITY SCHOOL DISTRICT, a California
public school district ("Grantor" or "District"), and
("Grantee")
A Grantor is the owner of that certain approximate six and sixty-one
hundredths (6.61) acre (gross) portion of the District's former Education Center,
commonly referred to as the "LeBard Property") as more particularly described in
Exhibit "A-1" and depicted on Exhibit "A-2" attached hereto and by this reference
made a part hereof (referred to as "Grantor Property" or "Recreational Property").
B. Grantee is the owner of the remaining approximate three and fifty-three
hundredths (3 53) acre portion of the LeBard Property located adjacent to the Grantor
Property, more particularly described on Exhibit "B-1" and depicted on Exhibit "B-2"
attached hereto and by this reference made a part hereof (the "Residential Property").
C Grantee, as part of its development of the Residential Property, is required
to construct certain improvements to the Residential Property and Grantor Property
(collectively, the "LeBard Property Park Site Improvements"), as well as to the adjacent
City Park and public right-of-way The LeBard Property Park Site Improvements
together with the required improvements to the City Park and public right-of-way shall
collectively be referred to as the "Park Site Improvements".
D. Upon Grantee completing the construction of the Park Site Improvements,
escrow for the sale of the Recreational Property between the District and City shall close
E. Grantor desires to grant to Grantee, and Grantee desires to receive from
Grantor, in accordance with the terms and provisions set forth herein, a temporary
easement over and upon the Grantor Property, to enable Grantee to construct the LeBard
Park Site Improvements
NOW, THEREFORE, Grantor hereby agrees as follows.
1 Grant of Easement. Grantor hereby grants to Grantee, subject to the terms
and provisions set forth herein, a temporary easement over and upon the Grantor Property
to perform the following improvements as generally depicted on the site map attached as
Exhibit "C" and by this reference made a part hereof
Page 36 of 60
19252vl / HBC 76
(a) Construction of a water quality basin, drainage swale and "under
sidewalk drain" on the southerly portion of the Residential Property and a portion of the
Recreational Property to serve the water quality for Residential Property.
(b) Construction of restroom/concession/storage building (1,500 sf) (the
"Multi -Purpose Building") in support of use of sports fields on Recreational Property
(c) Construction of paved area surrounding the Multi -Purpose Building
2,500 sf) on Recreational Property
(d) Construction of a portion of proposed parking lot (+/- 450 sf) on
Recreational Property
(e) Construction of proposed drainage swale (+/- 0 3 acres) on
Recreational Property
(f) Relocation of bullpen (+/- 1,000 sf) on Recreational Property
(g) Construction of a portion of water quality basin and swale (+/- 350
sf) on Recreational Property.
(h) Replacement and upgrade of the existing walkways within the sport
field areas to ADA accessible walkways and the relocation of bleachers (+/- 0 5 acres) on
Recreational Property ONLY during the August through February off-season for the Sea
View Little League when the sports fields are not being used
2 Term. The term of this Temporary Construction Easement Agreement shall
commence on the date hereof and shall terminate on the earlier to occur of (i) the date on
which the LeBard Park Site Improvements have been satisfactorily completed and
accepted by Grantor, and (11) the date that is twelve (12) months after the recordation of
Final Map 17801 for the Residential Property.
3, Liens Grantee shall not suffer or permit to be enforced against the Grantor
Property, or any part thereof, any mechanics', materialmen's, contractors' or
subcontractors' liens or any claim for damage arising from or related to Grantee's
activities on Grantor's Property
4 Insurance In addition to the workers' compensation and employer's
liability insurance and Grantee's covenant to defend, hold harmless and indemnify
Grantor, Grantee shall obtain and furnish to District, a policy of general public liability
insurance, including motor vehicle coverage covering Grantee's activities on Grantor's
Property. This policy shall indemnify Grantee, its officers, employees and agents while
acting within the scope of their duties, against any and all claims arising out of or in
Page 37 of 60
19252v 1 / HBC 76
connection with Grantee's activities on Grantor's Property, and shall provide coverage in
not less than the following amount. combined single limit bodily injury and property
damage, including products/completed operations liability and blanket contractual
liability, of One Million Dollars ($1,000,000) per occurrence If coverage is provided
under a form which includes a designated general aggregate limit, the aggregate limit
must be no less than One Million Dollars ($1,000,000) for Grantee's activities on
Grantor's Property. This policy shall name District, its officers, elected or appointed
officials, employees, agents, and volunteers (the "Additionally Insured Parties") as
Additional Insureds, and shall specifically provide that any other insurance coverage
which may be applicable to Grantee's activities on Grantor's Property shall be deemed
excess coverage and that Grantee's insurance shall be primary and non-contributory with
any other valid and collectible insurance or self-insurance available to the Additionally
Insured Parties. Any available insurance proceeds in excess of the minimum coverage
amount specified herein shall be available to the Additionally Insured Parties All
coverage available to Grantee shall also be available to the Additionally Insured Parties
Under no circumstances shall said above -mentioned insurance contain a
self -insured retention without the express written consent of District; however an
insurance policy "deductible" of $5,000 is permitted
Grantee shall be responsible for causing all subcontractors to maintain the
same types and limits of insurance coverage as that required of Grantee by this
Agreement
Prior to commencing any activities on Grantor's Property, Grantee shall
furnish to Grantor certificates of insurance subject to approval of the District evidencing
the foregoing insurance coverage as required by this Agreement; the certificates shall*
(a) provide the name and policy number of each carrier and policy,
(b) state that the policy is currently in force, and
(c) promise to provide that such policies will not be canceled or
modified without thirty (30) days' prior written notice of Grantor
Grantee shall maintain the foregoing insurance coverage in force at all
times while performing any activities on Grantor's Property.
The requirement for carrying the foregoing insurance coverage shall not
derogate from the Grantor's defense, hold harmless and indemnification obligations as set
forth under this Agreement Grantor or its representatives shall at all times have the right
to demand the original or a copy of all policies of insurance Grantee shall pay, in a
prompt and timely manner, the premiums on all insurance heremabove required.
Page 38 of 60
19252v 1 / HBC 76
Grantee shall provide a separate copy of the additional insured endorsement
to each of Grantee's insurance policies, naming the Additionally Insured Parties as
Additional Insureds, to the District for approval prior to performing any activities on
Grantor's Property. A statement on an insurance certificate will not be accepted in lieu of
the actual endorsement
Grantee shall require all subcontractors to name Grantor, its officers,
employees and agents, and the Additionally Insured Parties as Additional Insureds on all
subcontractor insurance policies using ISO form number CG 20 38 04 13 or coverage at
least as broad Grantee shall verify that every subcontractor policy endorsement
complies with the requirements set forth herein.
5. Indemnity Grantee hereby agrees to defend, indemnify and hold
harmless Grantor and its officers, employees and agents from any actions, suits, liens,
claims, damages, expenses, losses and liabilities (including reasonable attorneys' fees and
expenses) (collectively, "Claims") arising from or related to Grantee's use of Grantor's
Property pursuant to the terms of this Agreement, provided, however, that the foregoing
indemnity shall not apply to any Claims arising from or related to the acts or omissions of
Grantor on or with respect to Grantor's Property
6 Notices Any approval, disapproval, demand, document or other notice
("notice") which any party may desire to give to any other party shall be in writing and
shall be delivered by hand delivery, by overnight courier, or by U.S. certified or
registered mail (postage prepaid) and shall be deemed received when receipted for at the
addressee's place of business (in the case of hand delivery), on the date of delivery
confirmed by the overnight courier service (in the case of overnight courier delivery), and
two (2) days after being posted with the U S. mail (in the case of certified or registered
mail delivery). All such notices shall be delivered to the following addresses (or at any
other address as a party may later designate)
If to Grantor Huntington Beach City School District
17011 Beach Boulevard, Suite 560
Huntington Beach, California 92647
Attn: Assistant Superintendent, Administrative Services
If to Grantee
Attn
Page 39 of 60
19252v 1 / HBC 76
7 Governing. The laws of the State of California shall govern the
validity, enforcement, and interpretation of this Agreement.
8 Modifications, Waiver Except as otherwise provided herein, this
Agreement may be amended or modified, or any of the terms hereof waived, except by a
written instrument executed by the party against whom enforcement of the modification
or waiver is sought
9 Further Acts In addition to the acts recited in this Agreement to be
performed by Grantor and Grantee, Grantor and Grantee agree to perform or cause to be
performed any and all such further acts as may be reasonably necessary to consummate
the transactions contemplated hereby
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement
as of the date set forth above.
GRANTOR:
HUNTINGTON BEACH CITY SCHOOL DISTRICT
By- _
Name
Its
GRANTEE:
By
Name.
Its _
By
Name:
Its
Page 40 of 60
] 9252v 1 / HBC 76
EXHIBIT "A-1"
DESCRIPTION OF RECREATIONAL, PROPERTY
Page 41 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RECREATIONAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows
Beginning at a point on the south line of the northwest quarter of said Section 8, said
point also being common to the southeast corner of Lot 66, Tract 5128 and the northeast
corner of Lot 11, Tract 6003 in the City of Huntington, County of Orange, California,
said point also being the Point of Beginning (POB), thence along the easterly boundary of
said Tract 5128 North 1 ° 15' 10" West, 376 43' to a point located on the southerly right of
way for Crailet Drive, thence along said right of way North 88°44'50" East, 15.00',
thence South 1°15'10" East, 110.00' along a property line common to Lot 61 of Tract
5128, thence along the southerly boundary of Tract 5128 North 86°48'20" East, 128.71',
thence North 82112'00" East, 129 35', thence North 77°34'00" East, 66 28', thence
leaving said boundary South 1°20'20" East, 336.03', thence South 47°36'14" West,
10 62', thence South 1°25'14" East, 26 61', thence North 88°22'42" East, 48 67', thence
South 57°09' 16" East, 11 60', thence North 88°34'46" East, 154 67', thence N 59°23'41"
East, 10 25', thence North 88°37'33" East, 77 21', North 21°48'12" East, 50 91', thence
North 61055'22" West, 12 65', thence North 1055'36" West, 102 57', thence North
47049'03" East, 32.27', thence North 70017'17" East, 68.36', thence North 88036'01"
East, 9 17', thence South 1004'30" East, 128 96' to the north line of the said quarter
section, thence North 88055'31" East, 30 01' along the north line of the said quarter
section, thence South 1 ° 15' 08" East, 267 00' to the centerline of Cynthia Drive, thence
South 88055'31" West, 764.52' along said centerline, thence North 1015'08" West,
267 00' to the POB.
See Exhibit "A-2" for a plat depicting the above described land.
The parcel contains approximately 6 61 acres
All dimensions and areas are based on record information and can vary from
measurements on the ground
Page 42 of 60
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19252v I / HBC 76
EXHIBIT "A-2"
SITE MAP OF RECREATIONAL PROPERTY
Page 43 of 60
] 9252v] / HBC 76
EXHIBIT "A-211
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Page 44 of 60
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19252v 1 / HBC 76
EXHIBIT "B-1"
DECRIPTI®N OF RESIDENTIAL, PROPERTY
Page 45 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RESIDENTIAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows
Beginning at the southeasterly corner of Lot 50 of Tract 5128, City of Huntington,
County of Orange, California (Bk 211, pg 23) , said point also being located on the
westerly right of way for Craimer Lane and the Point of Beginning (POB), thence along
the southerly boundary of said Tract 5128 South 76°13'49" West, 122 76', thence South
69°34'26" West, 127 32', thence South 72°56'00" West, 129 35', thence South
77°34'00" West, 63 09', thence leaving said boundary South 1°20'20" East, 336.03',
thence South 47°36' 14" West, 10 62', thence South 1 °25' 14" East, 26 61', thence North
88°22'42" East, 48 67', thence South 57°09' 16" East, 11 60', thence North 88°34'46"
East, 154 67', thence N 59°23'41" East, 10.25', thence North 88°37'33" East, 77.21',
North 21°48' 12" East, 50.91', thence North 61°55'22" West, 12 65', thence North
1°55'36" West, 102.57', thence North 47°49'03" East, 32.27', thence North 70°17'17"
East, 68 36', thence North 88°36'01" East, 9 17', thence North 1°04'30" West, 76 10' to
a point on the westerly right of way for Craimer Lane said point also being the beginning
of a tangent curve concave southeasterly with a radial bearing of North 88055'30" East,
820 00', thence northerly along said curve 214 09' to the POB ending with a radial
bearing of North 76006'58" West
The parcel contains approximately 3.53 acres.
All dimensions and areas are based on record information and can vary from
measurements on the ground
Page 46 of 60
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EXHIBIT "B-2"
SITE MAP OF RESIDENTIAL PROPERTY
Page 47 of 60
19252v 1 / HBC 76
EXHIBIT "B-2"
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Page 48 of 60
19252v1 / HBC 76
EXHIBIT "C"
SITE MAP OF PARK SITE IMPROVEMENTS
Page 49 of 60
19252v1 / HBC 76
EXHIBIT "C"
1
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PUBLIC RIGHT OFWAYIMPROVEMEN_TS
PROPERTY
MULTI -PURPOSE BLDG
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Page 50 of 60
19252v1 / HBC 76
EXHIBIT "E"
Transferor's Certification of Non -Foreign Status
Page 51 of 60
19252vl / HBC 76
TRANSFEROR'S CERTIFICATION OF NON -FOREIGN STATUS
To inform City of Huntington Beach ("Transferee"), that withholding of tax under
Section 1445 of the Internal Revenue Code of 1986, as amended ("Code"), will not be
required upon the transfer of certain real property to the Transferee by Huntington Beach
City School District ("Transferor"), the undersigned hereby certifies the following on
behalf of the Transferor.
1 The Transferor is not a foreign corporation, foreign partnership, foreign
trust, foreign estate or foreign person (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder),
2 The Transferor's U S employer or tax (social security) identification
number is 95-6001643
The Transferor understands that this Certification may be disclosed to the Internal
Revenue Service by the Transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both
The Transferor understands that the Transferee is relying on this Certification in
determining whether withholding is required upon said transfer
The Transferor hereby agrees to indemnify, defend and hold the Transferee
harmless from and against any and all obligations, liabilities, claims, losses, actions,
causes of action, rights, demands, damages, costs and expenses of every kind, nature or
character whatsoever (including, without limitation, reasonable attorneys' fees and court
costs) incurred by the Transferee as a result of. (i) the Transferor's failure to pay U S
Federal income tax which the Transferor is required to pay under applicable U.S law, or
(11) any false or misleading statement contained herein
Under penalty of perjury I declare that I have examined this Certification and to
the best of my knowledge and belief it is true and correct and complete, and I further
declare that I have authority to sign this document on behalf of the Transferor.
Date , 201
TRANSFEROR.
Page 52 of 60
19252v1 / HBC 76
EXHIBIT "F"
Grant Deed and Agreement
Page 53 of 60
19252v1 / HBC 76
5
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO•
Attention•
MAIL TAX STATEMENT TO.
SAME AS ABOVE
(Space above Line for Recorder's Use Only)
GRANT DEED AND AGREEMENT
THIS GRANT DEED AND AGREEMENT ("Agreement") is made and
entered into as of the day of , 2016, by and between HUNTINGTON
BEACH CITY SCHOOL DISTRICT ("Grantor"), and CITY OF HUNTINGTON
BEACH ("Grantee")
In consideration of the mutual promises contained in this Agreement, the
parties hereto agree as follows.
1 Grant For a valuable consideration, receipt of which is hereby
acknowledged, Grantor hereby grants to Grantee that certain real property in fee simple
absolute situated in the City of Huntington Beach, County of Orange, State of California,
described on Schedule 1 and depicted on Schedule 2 attached hereto and by this reference
incorporated herein (the "Property")
SUBJECT TO:
2 Non -delinquent general and special real property taxes and assessments for
the current fiscal year, and supplemental assessments accruing after the recordation of
this Agreement,
3 Covenants, conditions, restrictions, easements, reservations, rights and
rights -of -way, dedications and offers of dedication, and all other matters of record,
4 Successors and Assigns This Agreement shall be binding upon and shall
inure to the benefit of the heirs, executors, administrators, successors and assigns of the
parties hereto.
Page 54 of 60
19252v 1 / HBC 76
5 Time of Essence Time is of the essence of each and every term,
condition, obligation and provision hereof
6 Provisions Severable. In the event any portion of this Agreement shall
be declared by any court of competent jurisdiction to be invalid, illegal or unenforceable,
such portion shall be deemed severed from this Agreement, and the remaining parts
hereof shall remain in full force and effect, as fully as though such invalid, illegal, or
unenforceable portion had never been part of this Agreement.
7. Counterparts This Deed may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
instrument
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written
Huntington Beach City School District
By -
Its
"Grantor"
City of Huntington Beach
By
Its
By
Its
"Grantee"
Page 55 of 60
19252vl / HBC 76
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On , 2016, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the came in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the within instrument
WITNESS my hand and official seal
Notary Public
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On , 201_, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the came in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the within instrument.
WITNESS my hand and official seal
Notary Public
Page 56 of 60
19252v1 / HBC 76
SCHEDULE I
LEGAL DESCRIPTION OF PROPERTY
Page 57 of 60
19252v1 / HBC 76
LEGAL DESCRIPTION OF RECREATIONAL PROPERTY
That portion of the northwest quarter and southwest quarter of Section 8, Township 6
South, Range 10 West in the Rancho Las Bolsas, described as follows.
Beginning at a point on the south line of the northwest quarter of said Section 8, said
point also being common to the southeast corner of Lot 66, Tract 5128 and the northeast
corner of Lot 11, Tract 6003 in the City of Huntington, County of Orange, California,
said point also being the Point of Beginning (POB), thence along the easterly boundary of
said Tract 5128 North 1 ° 15' 10" West, 376 43' to a point located on the southerly right of
way for Crailet Drive, thence along said right of way North 88°44'50" East, 15 00',
thence South 1 ° 15' 10" East, 110.00' along a property line common to Lot 61 of Tract
5128, thence along the southerly boundary of Tract 5128 North 86148'20" East, 128.71',
thence North 82°12'00" East, 129 35', thence North 77°34'00" East, 66 28', thence
leaving said boundary South 1°20'20" East, 336.03', thence South 47036'14" West,
10.62', thence South 1025' 14" East, 26 61', thence North 88°22'42" East, 48 67', thence
South 57°09' 16" East, 11 60', thence North 88134'46" East, 154 67', thence N 59°23'41"
East, 10 25', thence North 88°37'33" East, 77 21', North 21°48' 12" East, 50 91', thence
North 61°55'22" West, 12 65', thence North 1°55'36" West, 102.57', thence North
47°49'03" East, 32 27', thence North 70117' 17" East, 68 36', thence North 88°36'01"
East, 9 17', thence South 1°04'30" East, 128 96' to the north line of the said quarter
section, thence North 88055'31" East, 30 01' along the north line of the said quarter
section, thence South 1015'08" East, 267 00' to the centerline of Cynthia Drive, thence
South 88055'31" West, 764.52' along said centerline, thence North 1015'08" West,
267 00' to the POB
See Exhibit "A-2" for a plat depicting the above described land
The parcel contains approximately 6 61 acres
All dimensions and areas are based on record information and can vary from
measurements on the ground
Page 58 of 60
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19252v I / HBC 76
SCHEDULE2
PLAT OF PROPERTY
Page 59 of 60
19252v1 / HBC 76
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Page 60 of 60
19252vl / HBC 76
ATTACHMENT #2
Dept ID PL 15-013 Page 1 of 7
Meeting Date 7/6/2015
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING
7/6/2015
DATE:
SUBMITTED
Honorable Mayor and City Council Members
TO:
SUBMITTED
Fred A. Wilson, City Manager
BY:
PREPARED
Scott Hess, AICP, Director of Planning and Building
BY:
SUBJECT:
Approve Mitigated Negative Declaration No. 12-008, Resolution No. 2015-
30 approving General Plan Amendment No. 12-002, and Ordinance No.
4065 approving Zoning Map Amendment No 12-001 (LeBard Park and
School Site Land Use Chanqe to Residential — 20451 Craimer Lane)
Statement of Issue:
Transmitted for Council consideration is Mitigated Negative Declaration No 12-008,
General Plan Amendment No. 12-002 and Zoning Map Amendment No. 12-001; and a
request by the Huntington Beach City School District (HBCSD) to amend the General Plan
land use and Zoning designations on the closed LeBard School site from Public (P) to
Residential Low Density (RL) and Open Space — Park (OS-P)/ Open Space — Park and
Recreation (OS -PR). The requested amendments would ,allow the HBCSD to re -purpose
the approximately 10-acre surplus LeBard School site for public recreation and residential
uses The Planning Commission and staff are recommending approval.
Financial Impact
Not Applicable
Recommended Action:
PLANNING COMMISSION AND STAFF RECOMMENDATION
Motion to:
A) Approve Mitigated Negative Declaration No. 12-008 with findings for approval, and,
B) Approve General Plan Amendment No. 12-002 by adopting City Council Resolution
No. 2015-30, "A Resolution of the City Council of the City of Huntington Beach Approving
General Plan Amendment No. 12-002;" and,
C) Approve Zoning Map Amendment No. 12-001 with findings for approval and approve
for introduction Ordinance No. 4065, "An Ordinance of the City of Huntington Beach
Item 11. - 63 HB -472-
Dept ID PL 15-013 Page 2 of 7
Meeting Date 7/6/2015
Amending District Map 8 (Sectional Map 8-6-10) of the Huntington Beach Zoning and
Subdivision Ordinance to Rezone the Real Property At LeBard School Located at 20451
Craimer Lane from Public/Semi-Public to Residential Low Density (RL) and Open Space -
Park and Recreation (OS -PR) (Zoning Map Amendment No. 2012-001)."
Alternative Action(s).
The City Council may make the following alternative motion(s)
1. Deny Mitigated Negative Declaration No. 12-008, General Plan Amendment No. 12-002
and Zoning Map Amendment No. 12-001, with findings for denial.
2 Continue Mitigated Negative Declaration No 12-008, General Plan Amendment No 12-
002 and Zoning Map Amendment No 12-001 and direct staff accordingly
Analysis
A PROJECT PROPOSAL:
Applicant/
Property Owner LeBard School site: Huntington Beach City School District, 20451
Craimer Lane, Huntington Beach, CA 92646; LeBard Park site: City of
Huntington Beach
Location: 20451 and 20461 Craimer Lane, Huntington Beach, CA 92646 (closed
LeBard School site and LeBard Park)
Mitigated Negative Declaration No 12-008 represents a request to analyze the potential
environmental impacts associated with the project pursuant to Chapter 240 —
Environmental Review of the Huntington Beach Zoning and Subdivision Ordinance
(HBZSO) and the California Environmental Quality Act (CEQA).
General Plan Amendment No. 12-002 represents a request to amend the existing General
Plan land use designation for the LeBard Elementary School portion of the project site from
Public (underlying Residential Low Density) (P(RL)) to Residential Low Density — 7 units
per acre (RL-7) on 3.2 acres and Open Space — Park (OS-P) on 6.5 acres where the sports
fields are currently developed.
Zoning Map Amendment No. 12-001 represents a request to amend the existing zoning
designation for the LeBard Elementary School portion of the project site from Public -
Semipublic (PS) to Residential Low Density (RL) on 3 2 acres and Open Space — Parks
and Recreation (OS -PR) on 6 5 acres to be consistent with the proposed General Plan
Land Use Element designation pursuant to Chapter 247 — Amendments of the HBZSO.
The proposed MND, GPA, and ZMA are requested to allow the HBCSD to re -purpose the
approximately 10-acre surplus LeBard School site for public recreation and residential
uses. It should be noted that the proposed project also included Tentative Tract Map No
17801, Conditional Use Permit No. 12-039 and Variance No. 15-001 to permit construction
HB -473- Item 11. - 64
Dept ID PL 15-013 Page 3 of 7
Meeting Date 7/6/2015
of a single-family residential development on the approximately 3 2 acres to be designated
RL as well as improvements within LeBard Park. The Planning Commission approved the
development entitlements at their meeting on June 9, 2015 No appeals of the Planning
Commission's action on the development entitlements were filed within the 10 day appeal
period that ended on June 19, 2015 These entitlements were conditioned so they do not
become effective until the GPA and ZMA have been approved and in effect.
Project Description
The City would acquire 6.5 acres of the LeBard Elementary School site that are currently
developed with sports fields as an addition to the adjoining approximately three -acre
developed portion of LeBard Park. Improvements within the sports fields and existing park
area would include a new concession/restroom/storage building, relocation of bleachers
and bullpens, and accessibility upgrades. The HBCSD had proposed an expansion of the
existing parking lot at LeBard Park, but the Planning Commission eliminated this aspect of
the project in its approval of the associated development entitlements Other improvements
include grading and drainage within the park and sports fields area and a new passive
recreational area The existing amenities in LeBard Park would remain.
The HBCSD also proposes a 15-lot, low -density single-family residential subdivision in the
3 2-acre area where the original school building and pavement/parking area are currently
developed Residential lot sizes would average approximately 7,216 square feet in total
area Associated Infrastructure would also be constructed, to include a public street with
access from Craimer Lane The residential lots would be sold to a private home builder for
construction of the homes in the future. Because approximately half of the proposed
residential lots would not meet the minimum 60-foot lot width required in the RL zoning
district, the HBCSD is proposing a PUD subdivision, which requires provision of a public
benefit. The HBCSD proposes to provide a new restroom/concession/storage building for
the expanded park as well as upgraded passive park amenities
B. BACKGROUND
The LeBard Elementary School and LeBard Park were developed with the original
residential subdivision of this area of Huntington Beach in the 1960's In 1981, the
elementary school was closed for educational purposes. However, upon its closure, the
Huntington Beach City School District (HBCSD) elected to retain the school in reserve,
utilizing the building as a temporary administration office. This use continued until the
HBCSD moved out of the building and to a temporary location earlier this year.
In 2008, after a comprehensive review of its holdings and finances, the Huntington Beach
City School District Board concluded that LeBard Elementary School was no longer needed
as a school site and that the deteriorating school building had exceeded its useful life. On
March 11, 2008, the City of Huntington Beach received formal notification from the HBCSD
of their intent to sell the approximately 10-acre closed LeBard school site. The City Council
subsequently approved Resolution 2008-22, which, in part, authorized the City Manager to
begin negotiations with the District for purchase of the site pursuant to the Naylor Act. The
City and the HBCSD met several times during the next several years although no
agreement was reached. In 2013, the City Council formed a subcommittee related to the
re -use and acquisition of the closed LeBard school site. On May 5, 2014, the City Council
approved a Memorandum of Understanding between the City and the HBCSD outlining the
Item 11. - 65 xB -474-
Dept ID PL 15-013 Page 4 of 7
Meeting Date 7/6/2015
terms for a project that includes the development of 15 single-family homes and an option
for the City to purchase approximately 6.5 acres (area of existing sports fields) pursuant to
the Naylor Act.
C PLANNING COMMISSION MEETING AND RECOMMENDATION:
On June 9, 2015, the Planning Commission held a public hearing on the draft MND, the
two land use amendments, and the associated development entitlements for the LeBard
Park and Residential Project. Staff gave a presentation and overview of the proposed
project and answered questions from the Planning Commission. Greg Haulk,
Superintendent of the HBCSD, and the district's project consultant provided additional
history and information on the project.
In total, there were 25 speakers that spoke at the public hearing Most of the speakers
were residents of the two existing neighborhoods north and south of the school site
(Meredith Gardens and Suburbia) Most of the speakers were generally in support of the
project conceptually, but voiced concerns related to traffic, speeding, parking, and safety
impacts in the Meredith Gardens neighborhood. A couple of Suburbia residents also
voiced concerns regarding existing drainage issues in the neighborhood and the project's
potential drainage impacts Many speakers spoke in support of eliminating the proposed
parking lot expansion in favor of keeping the existing space for use as a passive park area.
Those residents that supported removing the parking lot expansion from the project
expressed varying viewpoints as to how parking could be alternatively addressed. Several
residents expressed that parking could be addressed during the peak Little League season
on the existing adjacent Southern California Edison right-of-way (SCE ROW) Several
other residents believe that the neighborhood streets could absorb the Little League
parking demand, while another group of residents submitted a conceptual plan for
providing additional parking in the southwest portion of the sports field area with access
from Cynthia Street. The president of the Sea View Little League, the Little League
organization that primarily uses the existing sports fields, also spoke in support of the
project.
The Planning Commission approved several straw vote motions to eliminate the parking lot
expansion (17 parking spaces) from the project, require replacement trees to be shade
trees rather than palm trees, and require the final design of the 15 homes to be reviewed
by the Design Review Board. The Planning Commission also approved, by minute action,
a recommendation to the City Council to investigate the use of the SCE ROW for overflow
parking during the peak Little League season and the provision of traffic calming measures
in the surrounding neighborhoods. A more detailed description and analysis of the project
is provided in the Planning Commission staff report dated June 9, 2015, (ATTACHMENT
NO. 6)
Planning Commission Action on June 9, 2015:
THE MOTION MADE BY CROWE, SECONDED BY BRENDEN, TO APPROVE MITIGATED
NEGATIVE DECLARATION NO. 12-008 WITH FINDINGS AND MODIFIED MITIGATION
MEASURES,
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Dept ID PL 15-013 Page 5 of 7
Meeting Date 7/6/2015
THE MOTION MADE BY KALMICK, SECONDED BY SEMETA, TO APPROVE GENERAL PLAN
AMENDMENT NO 12-002 AND FORWARD TO THE CITY COUNCIL;
THE MOTION MADE BY KALMICK, SECONDED BY BRENDEN, TO APPROVE ZONING MAP
AMENDMENT NO 12-001 WITH FINDINGS AND FORWARD TO THE CITY COUNCIL,
THE MOTION MADE BY SEMETA, SECONDED BY BRENDEN, TO APPROVE TENTATIVE
TRACT MAP NO 17801 WITH FINDINGS AND MODIFIED CONDITIONS OF APPROVAL,
THE MOTION MADE BY KALMICK, SECONDED BY SEMETA, TO APPROVE CONDITIONAL
USE PERMIT NO 12-039 WITH FINDINGS AND MODIFIED CONDITIONS OF APPROVAL, AND
THE MOTION MADE BY KALMICK, SECONDED BY BRENDEN, TO APPROVE VARIANCE NO
15-001 WITH FINDINGS AND MODIFIED CONDITIONS OF APPROVAL,
ALL MOTIONS CARRIED BY THE FOLLOWING VOTE
AYES BRENDEN, CROWE, HOSKINSON, KALMICK, MANDIC, PINCHIFF, SEMETA
NOES NONE
ABSTAIN NONE
ABSENT NONE
ALL MOTIONS PASSE®
THE PLANNING COMMISSION ALSO APPROVED FORWARDING THE FOLLOWING REQUEST
TO THE CITY COUNCIL VIA MINUTE ACTION REQUEST THE CITY COUNCIL TO DIRECT
STAFF TO INVESTIGATE USING THE SOUTHERN CALIFORNIA EDISON RIGHT-OF-WAY FOR
TEMPORARY OVERFLOW PARKING AND TO INVESTIGATE TRAFFIC CALMING MEASURES
IN THE NEIGHBORHOODS SURROUNDING LEBARD PARK.
D ANALYSIS AND RECOMMENDATION
General Plan Amendment
The proposed General Plan Land Use designation Is Residential Low Density (RL-7) for the
residential subdivision, which allows for single-family residential developments at a maximum
density of seven dwelling units per acre The amendment to the land use designation Is
consistent with the existing density and uses in the vicinity of the project site. In addition,
the existing underlying designation on the closed school site is Residential Low Density
(RL) indicating that this Is an appropriate designation should the school site permanently
transition to another use, such as this request.
The subject site is surrounded by single-family neighborhoods (maximum seven dwelling
units per acre) The amendment to change the land use designation on the existing sports
fields from Public to Open Space — Park (OS-P) is an appropriate designation for the
existing use and would be consistent with the land use designation of the current LeBard
Park area, and the City's parks designation in general. The proposed land use designation
will continue an existing designation presently located within the surrounding area.
The proposed land use designation and project will be consistent with the goals, policies,
and objectives of the Land Use, Housing, and Recreation and Community Services
Elements of the General Plan by contributing to the City's housing stock and parkland
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Dept ID PL 15-013 Page 6 of 7
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inventory by preserving existing sports fields/recreation area through acquisition of a closed
school site. The proposed RL-7 designation is sensitive to the existing character of the
surrounding residential neighborhoods by providing a land use that is compatible and
harmonious with the surrounding development. The proposed project will not conflict with
the identified goals, policies, and objectives contained in the General Plan and with
implementation of identified mitigation measures will not have significant impacts on the
environment. Staff and the Planning Commission recommend approval of the General
Plan Land Use designation amendment request to Residential Low Density for the
residential subdivision portion and Open Space — Park for the existing sports fields.
Zoning Map Amendment
The proposed zoning designation for the subject site is Residential Low Density (RL) This
designation permits single-family residential land use in neighborhoods Development
standards require a minimum parcel size of 6,000 square feet and minimum lot width of 60
feet Properties in the immediate vicinity of the project site vary from 5,500 square feet to
over 8,000 square feet with most in the 6,000 — 7,000 square foot range The proposed
single family residential lots range from 6,000 square feet to over 9,000 square feet with the
an average of approximately 7,000 square feet. Although not all of the lots meet the
minimum 60-foot frontage width requirement, all lots have a width dimension of at least 60
feet Additionally, deviations from the minimum lot size and width requirements are permitted
when a project is proposed as a Planned Unit Development (PUD), as is the case with the
proposed residential subdivision
Properties to the north, south, and west are zoned and developed with single-family
residential uses. The proposed zoning map amendment to RL would be compatible with
existing zoning designations surrounding the project site as well as the proposed General
Plan Land Use Element designation. The amendment of the zoning designation for the
subject site from Public -Semipublic to Residential Low Density implements the proposed
General Plan Land Use designation of Residential Low Density. The residential zoning
designation is the appropriate zoning for the site because it provides a continuation of a
compatible zoning designation that allows for a traditional detached single-family residential
development consistent with the single-family residential character of the surrounding area.
The proposed zoning permits development to be compatible in density, design, layout, and
character to the adjacent single-family residential uses Staff and the Planning
Commission recommend approval of the zoning map amendment to Residential Low
Density.
The amendment to change the zoning designation on the existing sports fields from Public
to Open Space — Park and Recreation (OS -PR) is an appropriate designation for the
existing use and would be consistent with the land use designation of the current LeBard
Park area and the City's parks designation in general. The proposed zoning designation
will continue an existing designation presently located within the surrounding area.
Environmental Status:
Draft Mitigated Negative Declaration (MND) No. 12-008 (ATTACHMENT NO. 7) was
prepared with mitigation measures pursuant to Section 240.04 of the HBZSO and the
provisions of the California Environmental Quality Act (CEQA). The draft MND concludes
that the project would result in environmental impacts that are less than significant or less
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Dept ID PL 15-013 Page 7 of 7
Meeting Date 7/6/2015
than significant with mitigation incorporated. Draft MND No. 12-008 was made available for
a 30-day public review and comment period from April 16, 2015 through May 15, 2015. 29
comment letters were received on the MND and responses to comments and errata are
provided as Attachment No. 8 to this report.
On June 9, 2015 the Planning Commission approved MND No. 12-008 and recommended
adoption to the City Council. Prior to any action on the project, it is necessary for the City
Council to review and act on Mitigated Negative Declaration No. 12-008. Staff in its initial
study of the project is recommending that the MND be approved with findings and
mitigation measures
It should be noted that the project modifications made by the Planning Commission,
specifically elimination of the parking lot expansion, would not change the conclusions of
the draft MND. The impact to traffic/transportation (i.e — project's potential to result in
inadequate parking) was determined to be less than significant. Currently, the Little
League utilizes existing parking at LeBard Park, the LeBard school site and the
surrounding neighborhood streets to accommodate the parking demand generated during
the peak season The elimination of the parking lot expansion, which provides
approximately 17 additional parking spaces, from the project would potentially increase the
number of vehicles utilizing available on -street parking spaces during the peak little league
season However, this potential increase would not change the level of significance of the
impact Thus, the modification would not result in new impacts or require additional
mitigation measures not identified in the MND.
Strategic Plan Goal:
Improve quality of life
Attachment(s):
1. Findings for Approval — Mitigated Negative Declaration No 12-008, Zoning Map
Amendment No 12-001
2 City Council Resolution No 2015-30 for General Plan Amendment No. 12-002
3 City Council Ordinance No. 4065 for Zoning Map Amendment No 12-001
4 Existing and Proposed General Plan Land Use Designation Maps
5 Existing and Proposed Zoning Maps
6 Planning Commission Staff Report dated June 9, 2015
7. Mitigated Negative Declaration No. 12-008 — Not Attached refer to website,
http://www.huntingtonbeachca.gov/files/users/planning/LeBardPark DISMND 2015-
04-16 web.pdf
8 Mitigated Negative Declaration No. 12-008 — Response to Comments and Errata
9 Tentative Tract Map No. 17801 and Site Plan dated January 21, 2015 — FOR
REFERENCE ONLY
10 Planning Commission Late Communications
11.Communications received since June 9, 2015
12. Planning Commission Notice of Action dated June 10, 2015
13. PowerPoint Presentation
Item 11. - 69 xB -478-
December 6, 2015
Mayor & City Council
City of Huntington Beach
Ref LeBard Park Agreement for Acquisition & Escrow Instructions
Please pull consent calendar item 11 on the December 7, 2015 council agenda and address
the issue presented below.
1 In 2014 the Meredith Gardens Homeowners Association board of directors voted to
oppose extending the parking lot into the park and put the savings into park amenities
In July 2015 the City Council approved the school district development plan without two
proposed parking lots and ball field relocations and requested staff to pursue use of the
resulting savings Meredith Gardens and Suburbia park residents also spoke to this at the
Planning Commission and City Council public hearings
The subject agreement does not contain or reference park site improvements requested
by the public, the mayor and council members when the entitlements were approved in
July
Recommendation Add an item (d) on page 5 under City Park Site Improvements "Install
an overhead picnic structure and amenities as depicted in the LeBard Park phase 2 plan
approved in 2008"
Thank you for your consideration of this matter
Ed Kerins
Secretary
Meredith Gardens Homeowners Association
SUPPLEMENTAL
COMMUNICATION
Meeting Gate: L-7 1A6 /-5--
Agenda Item No.
Dombo, Johanna
From: Alan Walls <alandwalls@aol com>
Sent: Sunday, December 06, 2015 5 02 PM
To: CITY COUNCIL, city@aol com
Subject: Acquisition and Escrow Agreement
Honorable Mayor and City Council Members
Please pull Item 11 of the Consent Calendar from tomorrow's agenda to resolve how much of the School District's
$607,000 estimate in the MOU of 5/5/14 for improvements to LeBard Park was saved when the following were deleted by
request of the surrounding community
1 A 50 car parking lot that required two T-Ball fields be dismantled and the resultant space regraded, paved, and lined
2, One T-Ball field wholly rebuilt together with backstop and associated grading
3 Creation of a second practice area for T-Ball
That community agreed to accept increased street parking precisely so that the savings could be used to enhance the
park as referred to by the Mayor at the entitlement hearings Those same improvements are now estimated by the School
District to be $850,000, a suspicious 40% increase which would eliminate the savings and negate the sacrifice of the
neighborhoods
This is money the City can use to begin the Phase 11 upgrade envisioned back in 2008
Thanks for your consideration Alan Walls, Suburbia Park Committee to Save LeBard
COMMUNICATION
V,me mg Date: W11-r-
Ag,anda Item No. 4