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HomeMy WebLinkAboutMary McQuillen - Betty McQuillen - Patricia McQuillen - 2009-03-02This Document was electronically recorded by Fidelity National A RECORDING REQUESTED BY: Fidelity National Title Company WHEN RECORDED MAIL TO AND MAIL, TAX STATEMENTS TO: City of Huntington Beach 2000 Main Street, P. O. Box 190 Huntington Beach, CA 92648 ORDER NO. 49049397-C ESCROW NO. 7005-198143 APN. 110-184-17 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIlollllllllllll�lll�II111111111111111111111111111111111 NO FEE 20120000.66964 04:24pm 02/03/12 66 422 G02 4 0.00 0.00 0.00 0.00 9.00 0.00 0.00 0..00 SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT DEED "µ THE UNDERSIGNED GRANTOR(s) DECLARE(s): k` 'Of/ DOCUMENTARY TRANSFER TAX is: $0.00* CITY TAX $0.00* *Transfer to government entity(ies) is exempt from payment of documentary transfer tax, R&T 11922 and recording fees, G 27383 FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Peter McQuillen, Executor of the Estate of Patricia L. McQuillen aka Patricia McQuillen, Pat McQuillen hereby GRANT(S) to City of Huntington Beach, a California municipal corporation the following described real property in the City of Huntington Beach, County of Orange, State of California Lot 32 of Tract No. 45, as per map recorded in book 9, page 34 of Maps, in the office of the County Recorder of said County. This Deed is made pursuant to the Independent Administration of Estates Act, Chapter 8, Article 1, Section 591, et seq. of the Probate Code of California as granted in that order for probate dated March 3, 2011 in Probate Case No. 30-2010-00427671-PR-PW-LJC. DATE: January 18, 2012 STATE OF t vvi iY n On I La L4 I IQ before me, \� e (, y 3" r K e, r a Notary Public, personally appeared Peter Mc Ouillen who 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 same 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 instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Peter McQuillen, Executor of the Estate of Patricia L. McQuillen aka Patricia McQuillen, Pat McQuillen ROSALIE PARKER. NOTARY Pl )B[A. STATE C)t- ori,,o Recorde. is l Erie Cotmty My Comm. Exp, 211 LO,13; Signature � ')­�� P 1/1 (seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE GD7F-pu� ' 0001)= 27301.7 7 C'ER7D" ER �'F Y'OF �'Er�= MT THEGZBLF POR27t'� flF T�II�S�4Cv�; TO WIECH 7=,5T,jyZ& 13.4MC=D, � SA�SFQLL0FS- ?IPAW DATF: r �. t Council/Agency Meeting Held: -2Z 200 Deferred/Continued to: Approved_ ❑ ditionally proved 0 Denied '- ,L pCit ' ler Signatr�i e Council Meeting Date: 3/2/2009 Department ID Number: ED 09-08 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND Cl COUNCIL MEMBERS SUBMITTED BY: FRED WILSON, CITY ADMIN TOR 101. PREPARED BY: STANLEY SMALEWITZ, DIRE T R OF ECONOMIC DEVELOPMENT,�- JIM B. ENGLE, DIRECTOR OF COMMUNITY SERVIC SUBJECT: APPROVE PROPERTY ACQUISITION OF ENCYCLOP PARCEL IN CENTRAL PARK Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City Council is asked to approve an agreement in the amount of $18,500, along with escrow fees not to exceed $2,000 with Mary McQuillen, Betty McQuillen, and Patricia McQuillen for the purchase of their encyclopedia parcel on the north side of Ellis Avenue between Edwards Street and Goldenwest Street (APN 110-184-17). Funding Source: Funds not to exceed $20,500 are budgeted in the Park Acquisition and Development Fund 20945101.81000. Recommended Action: Motion to: 1. Authorize the Mayor and City Clerk to Approve the Agreement for Acquisition and Escrow Instructions, and 2. Authorize the Mayor and City Clerk to execute the agreement and other related documents; 3. Authorize Director of Community Services or Director of Economic Development to execute any other related escrow documents. Alternative Action(s): Do not approve the Agreement for Acquisition and Escrow Instructions. REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 3/2/2009 DEPARTMENT ID NUMBER: ED 09-08 Analysis There are over 300 encyclopedia parcels in the designated Huntington Central Park area north of Ellis Avenue, between Goldenwest Street and Edwards Street. The City has acquired all but 53 parcels within the last 20 years. The parcels are being acquired as the owners come forward offering to sell to the City or by way of tax sales. Purchases are also made based on availability of City funding for further acquisitions through the Park Acquisition and Development Fund. Initially, the city aggressively pursued the acquisition of the parcels; however, it was decided to slow the purchase of the parcels available so as not to drive up the price of the lots and because the city was not ready to move forward with the development in this area of Central Park. The parcel recommended for acquisition is currently owned by Mary McQuillen, Betty McQuillen, and Patricia McQuillen. The owner is willing to sell the parcel to the City for $18,500 which is the price the City has offered based on current appraisal values for open space land. The balance of the costs necessary to acquire these parcels, including title and escrow fees, will be covered by the remaining funds allocated in the Park Acquisition and Development Fund. The City Council approved funding for the purchase of Central Park encyclopedia parcels in the FY 2008/09 budget. Staff recommends purchase of this parcel so that the City could ultimately develop this section of Central Park. Strategic Plan Goal: L-3 Preserve the quality of our neighborhoods, maintain open space, and provide for the preservation of historic neighborhoods. Environmental Status: Not applicable. Attachrment(s): -2- 2/5/2009 2:06 PM ATTACHMENT #1 AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS This AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of this A"" day of _1)9,9kCa�4 200�' and constitutes an agreement by which Mary McQuillen, Betty McQuillen, and Patricia McQuillen ("Seller") agrees to sell, and the CITY OF HUNTINGTON BEACH, a California municipal corporation ("Buyer"), agrees to purchase on the terms and conditions hereinafter set forth: That certain real property described in Exhibit "A" and shown in Exhibit `B" attached hereto, bearing Orange County Assessor's Parcel Numbers 110-184-17 ("Property"). The terms and conditions of this Agreement and the instructions to Stewart 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 Property to Buyer, and Buyer agrees to purchase the Property from Seller, upon the terms and conditions herein set forth. 2. Purchase Price. The purchase price ("Purchase Price") for the Property shall be EIGHTEEN THOUSAND AND FIVE HUNDRED DOLLARS ($18,500). This sum shall be full payment for the 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 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 Property by Buyer, and Seller hereby expressly and uncondi- tionally 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 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 Property. b. This Agreement arose out of Buyer's efforts to acquire the Property on a voluntary basis. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes any and all fixtures and equipment, goodwill (if any) and severance. Seller, on behalf of itself and its successors and assigns, hereby fully releases Buyer, its successors, agents, representatives, and assigns, Betty McQuillen, Mary McQuillen, & Patricia McQuillen. , �� 7% APN: 110-184-17 Seller's Initials uyer'sInitials Page 1 of 15 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 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 Property. This release shall survive the Close of Escrow. 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 PJTh, gh'tJ r, f�4� 4. Payment of Purchase Price. The Buyer shall deposit a minimum of $5000.00 into escrow within 10 (ten) days of final execution upon City Council's approval of this agreement. The Purchase Price for the Property shall be payable by Buyer as follows: Upon the Close 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 Purchase Price 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 to be paid by Buyer. 5. Escrow. Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Seller's Initials Buyer'sinitials Page 2 of 15 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 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 Property to Buyer, is recorded in the Official Records of Orange County, California. This Escrow shall close within sixty (60) days of the Opening Date ("Closing Date"). 6. Conditions of Title. It shall be a condition to the Close of Escrow and a covenant of Seller that title to the 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 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 8a(1) hereof and which are approved or deemed approved by Buyer in accordance with Paragraph 8a(I) hereof. Seller covenants and agrees that during the term of this Escrow, Seller will not cause or permit title to the Property to differ from the Approved Condition of Title described in this Paragraph 6. 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 8a(1) below, shall also A Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Seller's Initials Buyer's Initials Page 3 of 15 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 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. 7. 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 Property vested in Buyer subject only to the Approved Condition of Title. 8. 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, City agrees to cause Fidelity National Title to issue a Preliminary Title Report relating to the Property. Within fifteen (15) days after escrow has been opened, the City will cause Stewart Title Company to issue an Amendment to Escrow Instructions, which indicates those title exceptions that the City 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 Stewart 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 14 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 in the physical or financial condition of the Property and there shall have been no material adverse change in the financial condition of Seller or any general partners of Seller. (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 Property (including all structural and mechanical systems and leased areas) as Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 P)) p �3d Seller's Initials Buyer's Initials Page 4 of 15 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 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 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 Property. Buyer will provide Seller, upon request, at no cost, copies of any Buyer's investigation reports obtained by the Buyer, if any. (5) Council 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. (6) The property is sold in its present condition as of the date of acceptance subject to the Buyer's investigation rights. (7) Liquidated Damages: If Buyer fails to complete this purchase because of Buyer's default, Seller shall retain, as liquidated damages, $500.00 of the deposit actually paid. Buyer and Seller agree that this amount is a reasonable sum given that it is impractical or extremely difficult to establish the amount of damages that would actually be suffered by the Seller in the event Buyer were to breach this Agreement. Release of funds will require mutual, signed release instructions from both Buyer and Seller, judicial decision or arbitration award. 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. Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Seller's Initials Buyer's Initials Page 5 of 15 9. 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 "C." 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 conveying the Property to Buyer duly executed by Seller, acknowledged and in recordable form. 10. 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). 11. 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 Procedures Section 1265.240. 12. Prorations. The following prorations shall be made between Seller and Buyer on the Closing Date, computed as of the Closing Date: a. Taxes. Real and personal property taxes and assessments on the Property shall be prorated on the basis that Seller is responsible for (i) all such taxes for the fiscal year of the applicable taxing authorities occurring prior to the "Current Tax Period," and (ii) that portion of such taxes for the Current Tax Period determined on the basis of the number of days which have elapsed from the first day of the Current Tax Period to the Closing Date, inclusive, whether or not the same shall be payable prior to the Closing Date. The phrase "Current Tax Period" refers to the fiscal year of the applicable taxing authority in which the Closing Date occurs. In the event that as of the Closing Date the actual tax bills for Betty McQuillen, Mary McQuillen, & Patricia McQuillen b,3d� 6) 'G APN: 110-184-17 eler's Initials yer'slnitials Page 6 of 15 the year or years in question are not available, and the amount of taxes to be prorated as aforesaid cannot be ascertained, then rates and assessed valuation of the previous year, with known changes, shall be used, and when the actual amount of taxes and assessments for the year or years in question shall be determinable, then such taxes and assessments will be reprorated between the parties to reflect the actual amount of such taxes and assessments. b. No Rental Pro -rations. Pursuant to Paragraph 22(n) Seller warrants that there are no tenants or written or oral leases on all or any portion of the Property and the Escrow Holder is hereby instructed not to perform any rental pro -rations at the Close of Escrow. 13. 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 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 Property at or prior to the Close of Escrow. 14. Seller's Representations and Warranties. In consideration of Buyer entering into this Agreement, and as an inducement to Buyer to purchase the 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): Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Seller's Initials Buyer's Initials Page 7 of 15 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 Property in law or equity. 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 Property. e. Condemnation. There are no pending, or, to the best of Seller's knowledge, threatened proceedings in eminent domain or otherwise, which would affect the 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 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 Property, or any portion thereof, which are obligations which will affect the 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. Licensed 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 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 Property, or any portion thereof, Betty McQuillen, Mary McQuillen, & Patricia McQuillen Jy APN: 110-184-17 Sefler's Initial Buyer'slnitials Page 8 of 15 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 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 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 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 "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, Betty McQuillen, Mary McQuillen, & Patricia McQuillen n�. APN: 110-184-17 Seller's Initials yer'slnitials Page 9 of 15 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 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 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. This indemnity shall apply to, and Seller will only be responsible for, such hazardous substances, if any, that existed on or in the Property up to and including the close of escrow. 1. Pollutants. No pollutants or waste materials from the 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. No portion of the 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 Property which would prevent, impede, limit, or render more costly Buyer's contemplated use of the Property. 15. Buyer's Representations and Warranties. In consideration of Seller entering into this Agreement, and as an inducement to Seller to sell the 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 Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Sefler's Initials Buyer'sinitials Page 10 of 15 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. 16. Damage or Condemnation Prior to Closing. Seller shall promptly notify Buyer of any knowledge by Seller of casualty to the 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 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. 17. 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, 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 Economic Development Attn: Tina Krause, Real Property Agent 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 The Seller's mailing address is: Betty McQuillen, Mary McQuillen, and Patricia McQuillen c/o Richard Bell Vanguard Investment Properties 2601 E. Chapman Ave. #216 Fullerton, CA 92832 Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 Seller's Initials Buyer'slnitials Page 11 of 15 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. 18. 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. 19. Assignment. Seller may not assign, transfer or convey its rights or obligations under this Agreement without the prior written consent of Buyer, and then only if Seller's assignee assumes in writing all of Seller's obligations hereunder; provided, however, Seller shall in no event be released from its obligations hereunder by reason of such assignment. 20. Seller's Indemnification. Seller hereby agrees to indemnify, defend and hold harmless Buyer 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 Buyer relating to the 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 Seller of their representations, warranties and covenants contained in this Agreement. 21. Brokerage Commissions. (a). Seller represents to Buyer that there has been no broker, real estate agent, finder or similar entity engaged in connection with this Agreement or the sale of the Property from the Seller to Buyer, if consummated as contemplated hereby, except 'Vanqua-rei ("Broker"), whom represents the Seller exclusively. Upon close of escrow, Seller agrees to pay compensation to Broker as specified in separate written agreement between Seller and Broker. Seller agrees that should any claim be made for brokerage commissions or finder's fees by any broker, agent, finder or similar entity, by, through or on account of any acts of Seller or its agent, employees or representatives, Seller will indemnify, defend and hold the Buyer free and harmless from and against any and all loss, liability, cost, damage and expense (including attorneys' fees and court costs) in connection therewith. Seller agrees to pay, at its sole cost and expense, when due, any and all brokerage commissions incurred by Seller heretofore or hereafter incurred prior to close of escrow. (b). Scope of Broker Duty. Buyer and Seller acknowledge and agree that Broker (i) does not decide what price Seller should accept; (ii) does not guarantee the condition of the property; (iii) shall not be responsible for identifying defects or any other conditions of the property not known Betty McQuillen, Mary McQuillen, & Patricia McQuillen / APN: 110-184-17 Seller's Initials Buyer'slnitials Page 12 of 15 to Broker; (iv) shall not be responsible for providing legal or tax advice regarding any aspect of a transaction entered into by Buyer and Seller in the course of this representation. Buyer and Seller agree to seek legal, tax, insurance, title and other desired assistance from appropriate professionals. 22. 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. 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. Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 -A- P7 /Z'-'?')4 T-A Sellefs Initial Buyer's Initials Page 13 of 15 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 140). 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. 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 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. Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 o 6 Seller's Initials Buyer's Initials Page 14 of 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. DATED: APPROVED AS TO FORM: Seller: BETTY MCQUILLEN Buyer: pj City Attorney Q It'll �G INITIATED AND APPROVED: Director of Economic Development Betty McQuillen, Mary McQuillen, & Patricia McQuillen APN: 110-184-17 MARY MCQUILLEN q� n,_t ATRICIA MCQUILLEN CITY OF HUNTINGTON BEACH A California municipal corporation Mayor City Cle REVIE ED ND APPROVED: Cit nistrator P ) p? 6 if <�:� Seller's Initials Buyerslnitials Page 15 of 15 EXHIBIT "A" LEGAL DESCRIPTION (LEGAL DESCRIPTION TO BE PREPARED DURING ESCROW) oUN Y ASSESSOR DEPT. PURRPOSESSBONL Y. POR. S 112, NE 114, SEC. 34, T 5 S. R 11 W R THE ASSESSOR MAKES NO GUARANTEE AS TO 1 0- v 175 ACCURACY NOR ASSUMES ANY LIABILITY FOR OTHER USES. NOT TO BE REPRODUCED. ALL RIGHTS RESERVED. © COPYRIGHT ORANGE COUNTY ASSESSOR 2007 17 aT 12 3 4 5 6 78 9 10 if 1 oT 12 3 4 5 6 78 9 10 11 uo �zo so CT T 1 1 1 2 Cl 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4 5 6 7 8 9 10 11 12 ° LOT A = = LOT A e O8 10 14 18 19 0. 909 AC. 0. 909 AC. 0. 909 AC. 0. 909 AC. 1. 136 AC. 1 2 3 4 5 24 25 7 8 9 10 11 Cl 2 3 4 5 6 7 I 9 10 11 12 R.S. 87-25 13 f4 f5 16 17 1B 19 20 21 22 23 24 13 f4 15 16 f7 !8 19 21 22 23 24 l0T 25 26 273536LOT 25 26 27 28 29 30 31 33 34 3536 3 184 180 23 +2.1 2 19 Al1 18 17 16 15 14 13 12 23 22 21 20 19 18 17 16 15 14 13 I — LOT B 8 LOT B zs s z21 1 5 1' 6 16 z r —1 3 22 23 5 © 7 8 _ 9 _ 1 2 3 5 6 7 8 9 10 11 W 0799 AD. 0. 799 AC, O. BiB AC. 0. 789 AC. 0.851 AC. 37 38 39 40 41 42 43 44 45 46 47 48 37 38 39 40 41 42 43 44 45 46 4748 49 50 51 52 53 54 55 56 57 58 5 60 49 50 51 52 53 54 55 56 57 58 5960 N 21 20 19 18 17 16 15 14 13 12 it 10 22 21 20 19 18 Cl; 16 15 14 13 �I 8 W H 0 I " = 700' o W o jv X W r O V ELL IS m H vclruc 159-38 159-37 21 mZ TRACT NO. 8 M.M. 9-7 NOTE - ASSESSOR'S BLOCK & ASSESSOR'S MAP MARCH 1951 TRACT N0. _45 M.M. 9-45 PARCEL NUMBERS BOOK 110 PAGE 18SHOWN IN CIRCLES COUNTY OF ORANGE Al IMPORTANT NOTICE: An Affidavit should be signed by each individual or entity Transferor to whom or to which it applies. Before you sign, any questions relating to the legal sufficiency of this form, or to whether it applies to you or to a particular transaction, or about the definition of any of the terms used, should be referred to an attorney, certified public accountant, or other professional tax advisor, the Internal Revenue Service, or the California Franchise Tax Board. For further information on federal guidelines, see C.A.R. Legal Q & A "Federal Withholding: The Foreign Investment in Real Property Tax Act," and/or IRS Publication 515 or 519. For further information on state guidelines, see C.A.R. Legal Q & A "California Nonresident Withholding," and/or California FTB Pub. 1016. FEDERAL GUIDELINES FOREIGN PERSONS DEFINED. The following general information is provided to assist sellers in determining whether they are "foreign persons" for purposes of the Foreign Investment in Real Property Tax Act (FIRPTA), IRC §1445. FIRPTA requires a buyer to withhold and send to the Internal Revenue Service 10% of the gross sales price of a United States (U.S.) real property interest if the seller is a foreign person. No withholding is required for a seller who is a U.S. person (that is, not a foreign person). In order for an individual to be a U.S. person, he/she must be either a U.S. citizen or a U.S. resident alien. The test must be applied separately to each seller in transactions involving more than one seller. Even if the seller is a foreign person, withholding will not be required in every circumstance. NONRESIDENT ALIEN INDIVIDUAL. An individual whose residence is not within the U.S. and who is not a U.S. citizen is a nonresident alien. The term includes a nonresident alien fiduciary. An alien actually present in the U.S. who is not just staying temporarily (i.e., not a mere transient or sojourner), is a U.S. resident for income tax purposes. An alien is considered a U.S. resident and not subject to withholding under FIRPTA if the alien meets either the green card test or the substantial presence test for the calendar year. GREEN CARD TEST. An alien is a U.S. resident if the individual was a lawful permanent resident of the U.S.' at any time during the calendar year. This is known as the "green card test." SUBSTANTIAL PRESENCE TEST. An alien is considered a U.S. resident if the individual meets the substantial presence test for the calendar year. Under this test, the individual must be physically present in the U.S. on at least: (1) 31 days during the current calendar year; and (2) 183 days during the current year and the two preceding years, counting all the days of physical presence in the current year but only 1/3 the number of days present in the first preceding year, and 1/6 the number of days present in the second preceding year. DAYS OF PRESENCE IN THE U.S. TEST. Generally, a person is treated as physically present in the country at any time during the day. However, if a person regularly commutes to work in the U.S. from a residence in Canada or Mexico, or is in transit between two points outside the U.S. and is physically present in the country for less than 24 hours, he/she is not treated as present in the U.S. on any day during the transit or commute. In addition, the individual is not treated as present in the U.S. on any day during which he/she is unable to leave the U.S. because of a medical condition which arose while in the U.S. EXEMPT INDIVIDUAL. For the substantial presence test, do not count days for which a person is an exempt individual. An exempt individual is anyone in the following categories: (1) An individual temporarily present in the U.S. because of (a) full-time diplomatic or consular status, (b) full-time employment with an international organization or (c) an immediate family member of a person described in (a) or (b). (2) A teacher or trainee temporarily present in the U.S. under a "J' visa (other than as a student) who substantially complies with the requirements of the visa. An individual will not be exempt under this category for a calendar year if he/she was exempt as a teacher or trainee or as a student for any two calendar years during the preceding six calendar years. (3) A student temporarily present in the U.S. under an "F" or "J" visa who substantially complies with the requirements of the visa. Generally, a person will not be exempt as a student for any calendar year after the fifth calendar year for which he/she was exempt as a student, teacher or trainee. However, the individual may continue to be exempt as a student beyond the fifth year if he/she is in compliance with the terms of the student visa and does not intend to permanently reside in the U.S. CLOSER CONNECTION TO A FOREIGN COUNTRY. Even if an individual would otherwise meet the substantial presence test, that person is not treated as meeting the test for the current calendar year if he/she: (1) Is present in the U.S. on fewer than 183 days during the current year, and (2) Has a tax home in a foreign country and has a closer connection to that country than to the U.S. SPECIAL RULES. It is possible to be both a nonresident alien and a resident alien during the same tax year. Usually this occurs for the year a person arrives in or departs from the U.S. Other special provisions apply to individuals who were U.S. residents for at least three years, cease to be U.S. residents, and then become U.S. residents again. NONRESIDENT ALIEN INDIVIDUALS MARRIED TO U.S. CITIZENS OR RESIDENT ALIENS may choose to be treated as resident aliens for most income tax purposes. However, these individuals are considered nonresidents for purposes of withholding taxes. A FOREIGN PERSON OR PARTNERSHIP is one that does not fit the definition of a domestic corporation or partnership. A domestic corporation or partnership is one that was created or organized in the U.S., or under the laws of the U.S., or of any U.S. state or territory. GUAM AND U.S. VIRGIN ISLANDS CORPORATIONS. A corporation created or organized in or under the laws of Guam or the U.S. Virgin Islands is not considered a foreign corporation for the purpose of withholding tax for the tax year if: (1) at all times during the tax year, less than 25% in value of the corporation's stock is owned, directly or indirectly, by foreign persons, and (2) at least 20% of the corporation's gross income is derived from sources within Guam or at least 65% of the corporation's income is effectively connected with the conduct of a trade or business in the U.S. Virgin Islands or the U.S. for the 3-year period ending with the close of the preceding tax year of the corporation, or the period the corporation has been in existence if less. A NONRESIDENT ALIEN TRUSTEE, ADMINISTRATOR OR EXECUTOR of a trust or an estate is treated as a nonresident alien, even though all the beneficiaries of the trust or estate are citizens or residents of the U.S. Buyer's Initials ( ) ) Seller's Initials Copyright© 1988-2008, CALIFORNIA ASSOCIATION OF REALTORS@, INC. '"� AS REVISED 11/06 (PAGE 2 OF 2) Reviewed by Date OPPOEQUAHOUSING OPPORTUNITY SELLER'S AFFIDAVIT OF NONFOREIGN STATUS AND/OR CALIFORNIA WITHOLDING EXEMPTION (AS PAGE 2 OF 2) ATTACHMENT RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development Department SUBJECT: Approve Property Acquisition of Encyclopedia Parcel in Central Park COUNCIL MEETING DATE: March 2, 2009 RCA ATTAC H M E NTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached Not Applicable ❑ Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached ❑ Not Applicable Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached ❑ Not Applicable Staff Report (If applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable ENPLAHATIOo H FOR H=WG ATTACHMENTS - REVIEWED RETURNED -FORWAP.DED Administrative Staff ( ) Deputy City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: RCA Author: Tina Krause ext. 1529