HomeMy WebLinkAboutAdopt Resolution No. 2015-53 and approve Agreement for decla Dept ID ED 15-24 Page 1 of 2
Meeting Date 9/21/2015
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 9/21/2015
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A Wilson, City Manager
PREPARED BY: Ken Domer, Assistant City Manager
Kellee Fritzal, Deputy Director, Business Development
SUBJECT: Adopt Resolution No 2015-53 and approve Agreement for declaring the
disposition of surplus City-owned property and sale to adjacent property owner,
Young Men's Christian Association of Orange County (YMCA), located at the
Southeast Corner of Garfield Avenue and Gothard Street
Statement of Issue
The City Council is asked to adopt a resolution declaring the disposition of City-owned property
consisting of a remnant alley parcel located at the southeast corner of Garfield Avenue and Gothard
Street This property was obtained through an alley dedication The City Council is also asked to
approve a Purchase and Sale Agreement for the sale of this alley parcel and another adjacent
surplus property
Financial Impact
Approximately $52,500 00 in revenue will be generated by the sale of both above referenced
properties in this report Revenue will be allotted to the Traffic Impact Fund (20642955 41630)
Recommended Action
A) Adopt Resolution No 2015-53, "A Resolution of the City Council of the City of Huntington Beach
Declaring the Disposition of Certain Surplus Property," and,
B) Authorize the Mayor and City Clerk to execute an "Agreement for Sale of Surplus Real Property
and Escrow Instructions By and Between the City of Huntington Beach and Young Men's Christian
Association of Orange County" and all other related documents to convey ownership of the surplus
properties to the adjoining owner, and,
C) Authorize the City Manager to execute any other related escrow documents
Alternative Action(s)
1 Do not adopt the Resolution or approve the sale and direct staff as necessary
Analysis
When the City owns vacant land that has no current or future planned public use, the City has the
ability to declare the property as surplus and offer it for sale In 2014, the City declared and
approved two City-owned surplus properties for sale under Resolution 2014-19 One surplus
property was sold in 2014, while the other surplus property is referenced as the "Gothard/Garfield
Parcel" under the purchase and sale agreement in this report
Item 8. - I HB -498-
Dept ID ED 15-24 Page 2 of 2
Meeting Date 9/21/2015
In early 2015, the City identified a small City-owned parcel designated as an alleyway located on
the east side of Gothard Street near Garfield Avenue (Attachment 1) The property is not
independently developable and is further encumbered by an existing 10-wide pipeline easement
Public Works and Real Property Services staff reviewed the alley property with other City
Departments and confirmed that there is no future use or need for the property
On June 9, 2015, the Planning Commission reviewed the alley property and adopted General Plan
Conformance No 15-001, which allows for the reversion/sale of this property to an adjacent owner
Additionally, Chapter 3 06 of the Huntington Beach Municipal code allows the Council to determine
that disposition of surplus real property to an adjacent owner is in the public's interest Staff
provided notices of potential sale of this City property to the adjacent property owners (YMCA and
Villas at Seacliff Homeowners Association) The YMCA provided a written response regarding their
interest in purchasing the property The Villas at Seacliff provided a written response indicating that
they had no interest in purchasing the property Pursuant to Government Code 54221, this land is
exempt from any surplus land requirements, therefore, it was not necessary to notify other public
agencies
The property was not appraised as the associated cost would have likely been higher than the
property value based on other sales and considering its configuration and existing pipeline
easement encumbrance However, the property has value to the YMCA As such, the City
negotiated a fair market value with the YMCA for a purchase price of $2,500 If approved, the
YMCA would plan to join the remnant alley property and approved 2014 surplus property
(Gothard/Garfield Parcel) into their existing vacant property to form one developable property
The proposed designation of the alley as surplus property will not negatively impact surrounding
property owners and will help facilitate the development of YMCA's adjacent vacant parcel
Additionally, the proposed sale will generate additional one-time revenues for the City, while
removing the City's liability obligations for maintenance of the property
Staff recommends that the City Council adopt a resolution declaring the alley property as surplus
and approve of the sale to the adjacent property owner
Environmental Status
Not applicable
Strategic Plan Goal
Enhance and maintain infrastructure
Attachment(s)
1 Resolution No 2015-53, "A Resolution of the City Council of the City of Huntington Beach
Declaring the Disposition of Certain Surplus Property," including Exhibit "A" Map of
southeast corner of Garfield Avenue and Gothard Street
2 Agreement for Sale of Surplus Real Property and Escrow Instructions By and Between the
City of Huntington Beach and Young Men's Christian Association of Orange County (YMCA)
HB -499- Item 8. - 2
RESOLUTION NO 2 015-5 3
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH DECLARING THE
DISPOSITION OF CERTAIN SURPLUS PROPERTY
WHEREAS, the City of Huntington Beach is the owner of certain real property at the
intersection of Gothard Street and Garfield Avenue as more particularly set forth in Exhibit "A",
attached hereto and incorporated by this reference, and
The City acquired the parcel as follows the property at Gothard Street and Garfield
Avenue was acquired foi alley purposes by dedication on Tract 16846 and the Garfield Street
Addition
NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby
resolve as follows
1 That the Parcel as described above is surplus and the public interest and necessity
require the disposition thereof, and
2 Because of low values, the Parcel was not appraised (per exception in Section
3 06 010(b) of the Huntington Beach Municipal Code) Fair market value was negotiated with
the adjacent property owners, and
3 The costs incurred in preparing the Parcel for sale, including all related expenses
and appraisal fees have been added to and made a part of the value to be paid on the sale of the
Parcels; and
4 The Parcel is to be sold for cash to the adjacent property owners for the amount
described in the Agreement for Acquisition and Escrow Instructions to be approved concurrently
herewith, and
5 The City Manager is hereby authorized and directed to execute all documents and
take all steps necessary to dispose of such Surplus Properly, pursuant to the determinations of
this Council and the procedures set forth in Chapter 3 06 of the Huntington Beach Municipal
Code
15-4687/119963 1
Resolution No . 2015-53
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 21 s t day of September , 2015
ay
REVIEW APPROVED- APPROVED A FORM:
l
do Manager City Attorney
INITIATED AND
/APPROVED•
Deputy Director 4fWsiness Development
15-4687/119963 2
Resolution No . 2015-53
Exhibit A
SURPLUS PROPERTY
GARFIELD STREET ADDITION
APN(NONE)
ur
12
?S 6
Res. No. 2015-53
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L FLYNN the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of
Huntington Beach is seven, that the foregoing resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a Regular meeting thereof held on September 21, 2015 by the following vote
AYES: Posey, Katapodis, Hardy, Sullivan, Delgleize, Peterson
NOES: O'Connell
ABSENT: None
ABSTAIN: None
City CVrk and ex-officio CMrk of the
City Council of the City of
Huntington Beach, California
FATmum TACHM E N T #2
AGREEMENT FOR SALE OF SURPLUS REAL PROPERTY AND
ESCROW INSTRUCTIONS BY AND BETWEEN THE
CITY OF HUNTINGTON BEACH AND
YOUNG MEN'S CHRISTIAN ASSOCIATION OF ORANGE COUNTY
This Sales Agreement ("Agreement") is made and entered into on this — day of
20�IS , by and between the City of Huntington Beach, a California
municipal corporation, ("City") and Young Men's Christian Association of Orange County, a
California nonprofit public benefit corporation ("Buyer"). City and Buyer may sometimes
hereinafter be collectively referred to as the "Parties."
WHEREAS, the City owns that certain real property generally described as follows• (1) that
certain parcel located near the southeast corner of the intersection of Gothard Avenue and Garfield
Street, APN I I1-150-13, (the "Gothard/Garfield Parcel"); and (2) that certain real property located
near the southeast corner of the intersection of Gothard Avenue and Garfield Street, currently used
as a public alley (the "Alley Parcel"), both of which are located in the City of Huntington Beach,
Orange County, California, and which pursuant to Huntington Beach Municipal Code Chapter 3.06
have been determined to be surplus real property and available for disposal (collectively, the
"Property") and are more particularly described in the legal descriptions and maps attached hereto
as Exhibits"A" and"B,"respectively; and
The City Council authorized the disposal of the Gothard/Garfield Parcel by Resolution No.
2014-19, adopted on May 19, 2014; and
The City Council authorized the disposal of the Alley Parcel by Resolution No.
,_D/S — 53 , adopted on Z/ , 20Ir,
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and
valuable consideration,the Parties agree as follows:
1. SALE OF THE PROPERTY
1.1 Sale. City agrees to sell and convey the Property to Buyer, and Buyer agrees
to purchase the Property from City, subject to the terms and conditions set
forth in this Agreement. The Property that is the subject of this offer consists
of approximately 10 , 3 2 5 square feet located in the City of Huntington
Beach, County of Orange, State of California and is more fully described in
the maps collectively attached hereto as Exhibits"A" and`B," respectively.
2. PURCHASE PRICE
2.1 Purchase Price. The total purchase price to be paid by Buyer to City for the
Property shall be Fifty-two Thousand Five Hundred Dollars ($52,500.00).
2.2 Payment of the Purchase Price. The Purchase Price for the Property shall
be payable by Buyer as follows Upon the Close of Escrow, Buyer shall
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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 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.
3. CONDITIONS OF SALE
3.1 Buyer's Costs. Buyer shall pay all recording fees, documentary transfer
taxes, escrow fees, policies of title insurance, and any other costs connected
with the closing of this transaction.
3.2 Further Documents and Assurances. Buyer and City shall each, diligently
and in good faith, undertake all actions and procedures reasonably required to
place the escrow in condition for closing as and when required by this
Agreement. Buyer and City agree to execute and deliver all further
documents and instruments reasonably required by the escrow holder or Title
Company. City shall deliver or cause to be delivered to escrow holder in time
for delivery to Buyer at the closing an original ink signed Grant Deed, duly
executed and in recordable form, conveying fee title to the Property to Buyer.
3.3 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 City ("Opening Date")
Escrow Holder shall notify Buyer and City, in writing, of the date Escrow is
opened and the Closing Date, as defined in Paragraph 3 4, below. In
addition, Buyer and City 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.
3.4. 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").
3.5. Conditions of Title It shall be a condition to the Close of Escrow and a
covenant of City that title to the Property shall be conveyed to Buyer by City
by the Grant Deed, subject only to the following Approved Conditions of
Title ("Approved Condition of Title")
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3.5.1. Matters affecting the Approved Condition of Title created by or with
the written consent of Buyer.
3.5.2. Exceptions which are disclosed by the Report described in Paragraph
3.7.1 hereof and which are approved or deemed approved by Buyer in
accordance with Paragraph 3.7.1 hereof
City covenants and agrees that during the term of this Escrow, City will not cause or
permit title to the Property to differ from the Approved Condition of Title described in this
Paragraph. 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 3.7.1 below, shall also be subject to
Buyer's approval and must be eliminated or ameliorated to Buyer's satisfaction by City prior to the
Close of Escrow as a condition to the Close of Escrow for Buyer's benefit.
3.6. 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.
3.7. Conditions to Close of Escrow.
3.7.1. 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:
(a) Preliminary Title Report and Exceptions. Immediately
after escrow is opened as provided herein, Buyer agrees to
cause Orange Coast Title Company to issue a Preliminary
Title Report relating to the Property. Within fifteen (15) days
after escrow has been opened, the Buyer will cause Mor
Escrow Company to issue an Amendment to Escrow
Instructions, which indicates those title exceptions to which
Buyer objects. City will have ten(10) days after receipt of
such amendment to review and approve it. In the event of
non-approval, Buyer shall have the right to withdraw its
objections or cancel escrow within ten (10) days after Buyer's
receipt of notice from City of its non-approval. Each party
will instruct Mor Escrow Company to cancel the escrow, as
applicable, in the event of non-approval and cancellation by
Buyer.
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(b) Representations, Warranties, and Covenants of City. City
shall have duly performed each and every agreement to be
performed by City hereunder and City's representations,
warranties, and covenants set forth in Paragraph 4 shall be true
and correct as of the Closing Date.
(c) No Material Changes. At the Closing Date, there shall have
been no material adverse changes in the physical or financial
condition of the Property.
(d) 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 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 City 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 City, upon request, at
no cost, copies of any Buyer's investigation reports obtained
by the Buyer, if any.
(e) The property is sold in its present condition as of the date of
acceptance subject to the Buyer's investigation rights.
3.7.2. Conditions to City's Obligation. For the benefit of City, the Close
of Escrow shall be conditioned upon the occurrence and/or
satisfaction of each of the following conditions (or City's waiver
thereof, it being agreed that City may waive any or all of such
conditions):
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(a) Buyer's Obligations. Buyer shall have timely performed all
of the obligations required by the terms of this Agreement to
be performed by Buyer, including preparation of Grant Deed,
legal description and associated exhibits approved by City,
and
(b) Buyer's Representations. All representations and warranties
made by Buyer to City in this Agreement shall be true and
correct as of the Close of Escrow.
3.8. Deposits by City. At least one (1) business day prior to the Close of Escrow,
City shall deposit or cause to be deposited with Escrow Holder the Grant
Deed conveying the Property to Buyer duly executed by City, acknowledged
and in recordable form.
3.9. 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 if designated herein(as
reduced or increased by the proration, debits and credits hereinafter
provided).
3.10. 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 City for document drafting, recording, and
miscellaneous charges. If, as a result of no fault of Buyer or City, 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.
3.11. 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.
3.11.1 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 (if any) on the face of the Deed, but to
supply same by separate affidavit.
3.11.2 Funds. Disburse from funds deposited by Buyer with Escrow Holder
toward payment of all items chargeable to the account of Buyer,
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pursuant thereto in payment of such costs, and disburse the balance of
such funds, if any,to Buyer.
3.11.3 Documents to Buyer. Deliver when issued,the Title Policy to
Buyer.
3.11.4 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.
4. CITY'S REPRESENTATIONS,WARRANTIES,AND DISCLOSURES. In
addition to any express agreements of City contained herein,the following constitute
representations and warranties of City to Buyer, of this Agreement:
4.1 Reliability of Information. City obtained the information contained in this
Agreement from sources deemed reliable; however, City makes no
guarantees as to the accuracy of the information provided.
4.2 Authority of State. City is a government entity, duly organized and validly
existing under the laws of the State of California. City has full power and
authority to own, sell, and convey the Property to Buyer and to enter into and
perform its obligations pursuant to this Agreement.
4.3 Taxes. City is exempt from property taxes and assessments and none are or
will be owing at close of escrow.
4.4 Disclosures. Buyer acknowledges that Buyer is purchasing the Property
solely in reliance on Buyer's own investigations.No representations or
warranties of any kind whatsoever, expressed or implied, have been made by
City, City's agents, or employees, including in any investigations, studies or
documents identified under Section 4.6 below. Buyer further acknowledges
and warrants that as of the close of escrow Buyer will be aware of all zoning
regulations, other governmental requirements, site and physical conditions
(including the presence of hazardous materials or other adverse
environmental conditions), and other matters affecting the use and condition
of the Property including any investigations, studies, and documents
identified in section 4.6. Buyer agrees to purchase the Property in the
condition that it is in at close of escrow, subject, however, to Buyer's right to
terminate should the Property be damaged or destroyed by causes other than
causes attributable to Buyer's entry on the Property and inspections ordered
by Buyer prior to close of escrow Buyer shall be responsible at Buyer's sole
expense for any or all remediation required to make Property usable for
Buyer's intended purpose.
4.5 As-Is Purchase. Except as provided in paragraph 4.4, Buyer specifically
acknowledges and agrees that City will sell and Buyer will purchase the
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Property on an"as-is with all faults"basis, and that having been given the
opportunity to inspect the Property and review information and
documentation affecting the Property, Buyer is not relying on any
representations or warranties of any kind whatsoever, express or implied,
from City or its agents as to any matters concerning the Property, including
without limitation: (i) the quality, nature, adequacy, and physical condition
of the Property including soils, geology, and any groundwater; (ii.)the
existence, quality, nature, adequacy, and physical condition of utilities
serving the Property; (iii) the development potential of the Property and the
Property's use, merchantability, fitness, suitability, value, or adequacy of the
Property for any particular purpose, (iv) the zoning or other legal status of
the Property or any other public or private restrictions on use of the Property;
(v.)the compliance of the Property or its operation with any applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions, and restrictions
of any governmental or quasi-governmental entity or of any other person or
entity; (vi.)the presence of hazardous materials on, under, or about the
Property or the adjoining or neighboring property; (vii.) the condition of title
to the Property; and (viii)the economics of the operation of the Property.
4.6 Existing Investigations, Studies, and Documents. Buyer has knowledge of
the following investigations, studies, and documents as provided by City in
connection with his/her decision to purchase the Property. These reports and
documents relating to the Property disclosed by City are true and correct
originals or copies thereof City makes no representations or warranties nor
expresses or implies any opinion concerning their accuracy.
1 - None -
2.
3
4.7 Absence of Fraud and Misleading Statements. To the best of City's
knowledge, no statement of City in this Agreement or in any document,
certificate, or schedule furnished or to be furnished to Buyer pursuant hereto
or in connection with the transaction contemplated hereby contains any
untrue statement of material fact
4.8 General Representation. No representation, warranty or statement of City
in this Agreement or in any document, certificate or schedule furnished or to
be furnished to Buyer pursuant hereto contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements or facts contained therein not misleading.
City's representations and warranties made in this Agreement shall be
continuing and shall be true and correct as of the date of the close of escrow
with the same force and effect as if remade by City in a separate certificate at
that time. The truth and accuracy of City's representations and warranties
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made herein shall constitute a condition for the benefit of Buyer to the close
of escrow (as elsewhere provided herein) and shall not merge into the close
of escrow or the recordation of the Grant Deed in the Official Records, and
shall survive the close of escrow.
5. BUYER'S REPRESENTATIONS AND WARRANTIES. In addition to any
express agreements of Buyer contained herein, the following constitute
representations and warranties of Buyer to City, of this Agreement:
5.1 Representations Regarding Buyer's Authority.
(a) Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate
the transactions contemplated hereby.
(b) The individuals executing this Agreement and the instruments
referenced herein on behalf of Buyer have the legal power, right, and
actual authority to bind Buyer to the terms and conditions hereof and
thereof.
(c) This Agreement is, and all other instruments, documents and
agreements required to be executed and delivered by Buyer in
connection with this Agreement are and shall be, duly authorized,
executed and delivered by Buyer and shall be valid, legally binding
obligations of and enforceable against Buyer in accordance with their
terms.
(d) All requisite action(corporate, trust,partnership or otherwise)has
been taken by Buyer in connection with the entering into this
Agreement, the instruments referenced herein, and the consummation
of the transactions contemplated hereby. No consent of any partner,
shareholder, creditor, investor,judicial or administrative body,
authority other party is required.
(e) Neither the execution and delivery of this Agreement and documents
referenced herein,nor the incurrence of the obligations set forth
herein,nor the consummation of the transactions herein contemplated,
nor compliance with the terms of this Agreement and the documents
referenced herein conflict with or result in the material breach of any
terms, conditions or provisions of, or constitute a default under, any
bond, note, or other evidence of indebtedness or any contract,
indenture, mortgage, Deed of trust, loan, partnership agreement, lease
or other agreements or instruments to which Buyer is a party or
affecting the Property.
5.2 General Representation. No representation, warranty or statement of Buyer
in this Agreement or in any document, certificate or schedule furnished or to
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be furnished to City pursuant hereto contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements or facts contained therein not misleading.
Buyer's representations and warranties made in this Agreement shall be
continuing and shall be true and correct as of the date of the close of escrow
with the same force and effect as if remade by Buyer in a separate certificate
at that time. The truth and accuracy of Buyer's representations and warranties
made herein shall constitute a condition for the benefit of City to the close of
escrow (as elsewhere provided herein) and shall not merge into the close of
escrow or the recordation of the Grant in the Official Records, and shall
survive the close of escrow.
6. DUE DILIGENCE.
6.1 Buyer's Investigation of Property Condition. Real property often contains
defects and conditions which are not readily apparent and which may affect
the value or desirability of the Property. Therefore, it is the affirmative duty
of Buyer to exercise reasonable care to discover those facts which are
unknown to Buyer or within the diligent attention and observation of Buyer
Buyer agrees to provide to City, at no cost, upon request of City, complete
copies of all inspection reports obtained by Buyer concerning the Property
6.2 Buyer's Acceptance of Property Condition. Buyer's acceptance of the
condition of the Property is a contingency of this Agreement, accordingly,
Buyer shall have the right to conduct inspections, investigations,tests,
surveys, and other studies at Buyer's expense Buyer is strongly advised to
exercise these rights and select professionals with appropriate qualifications
to conduct inspections of the entire Property. If Buyer does not exercise these
rights, Buyer is acting against the advice of City.
6.3 Scope of Buyer's Investigations. Buyer agrees and warrants, or by the
failure to do so shall have waived any rights to do so hereunder, that at close
of escrow Buyer shall have investigated the condition and suitability of all
aspects of the Property and all matters affecting the value or desirability of
the Property, including but not limited to the following.
6.3.1 Condition of systems and components.Foundation,plumbing,
siding, electrical, heating, mechanical, roof, air conditioning, built-in
appliances, security, and any other structural or nonstructural systems
and components, and the energy efficiency of the Property.
6.3.2 Size and age of improvements. Room count,room dimensions,
square footage in improvement, lot size, and age of the improvements
6.3.3 Lines and boundaries. Property lines and boundaries
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63.4 Waste disposal. Type, size, adequacy, and condition of sewer and/or
septic systems and components.
6.3.5 Governmental requirements and limitations.Availability of
required governmental permits, inspections, certificates,or other
determinations affecting the Property, including historical
significance. Any limitations, restrictions, zoning,building size
requirements, or other requirements effecting the current or future use
or development of the Property.
63.6 Rent and occupancy controls. Any restrictions that may limit the
amount of rent that can legally be charged and the maximum number
of persons who can lawfully occupy the Property.
63.7 Water and utilities;well systems and components.Availability,
adequacy,and condition of public or private systems.
63.8 Environmental hazards. The presence of asbestos, formaldehyde,
radon,methane, other gases, lead based paint, other lead
contamination, fuel or chemical storage tanks, waste disposal sites,
electromagnetic fields, and other substances, materials, products, or
conditions.
6.3.9 Geologic conditions. Geologic/seismic conditions, soil
stability/suitability,and drainage.
63.10 Neighborhood, area, subdivision requirements. Neighborhood or
area conditions including schools; proximity and adequacy of law
enforcement; proximity to commercial, industrial, or agricultural
activities; crime statistics; fire protection; other governmental
services, existing and proposed transportation; construction and
development which may affect noise, view or traffic; airport noise;
and noise or odor from any source, wild or domestic.
63.11 Matters of record. Covenants, conditions, and restrictions; Deed
restrictions; easements; and other title encumbrances of record.
6.3.12 Other matters. Any and all other matters such as availability of
suitable public infrastructure, assessment, other special service
districts, and soil or other conditions on the Property, not herein
listed, which are or may be pertinent to Buyer's purpose for acquiring
the Property.
7. INDEMNIFICATION. Buyer shall defend, indemnify, and hold the City harmless
from and against any and all claims, liabilities, obligations, losses, damages, costs,
and expenses, including, but not limited to, attorney's fees, court costs, and litigation
10
154744/121328
expenses that City may incur or sustain by reason of or in connection with any
misrepresentation made by the Buyer pursuant to this Agreement.
8. MINERAL RESERVATIONS. City shall retain all mineral rights in the Property,
and the Grant Deed shall contain the following language-
"EXCEPTING therefrom all oil, gas and other hydrocarbon substances and
minerals lying below a depth of 500 feet from the surface of said land, but
without the right of surface entry at any time upon said land or within the
top 500 feet thereof, for the purpose of exploiting, developing, producing,
removing and marketing said substances."
9. PRIOR AGREEMENTS. This Agreement, in effect as of the Date of Agreement,
supersedes any and all prior agreements (if any) between City and Buyer regarding
purchase and sale of the Property.
10. NOTICES. Any notice, tender, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered,
mailed or sent by wire or other telegraphic communication in the manner provided in
this Agreement,to the following persons:
If to City: If to Buyer:
City of Huntington Beach YMCA of Orange County
Attn: Real Estate Services Jeff McBride,President/ CEO
2000 Main Street 13821 Newport Blvd., Suite 200
Huntington Beach, CA 92647 Tustin, CA 92780
11. CALCULATION OF TIME. Under this Agreement, when the day upon which
performance would otherwise be required or permitted is a Saturday, Sunday or
holiday, then the time for performance shall be extended to the next day which is not
a Saturday, Sunday or holiday. The term "holiday" shall mean all and only those
State holidays specified in Sections 6700 and 7701 of the California Government
Code.
12. TIME OF ESSENCE Time is of the essence of this Agreement and each and every
provision hereof.
13. ENTIRE AGREEMENT. This Agreement shall constitute the entire understanding
and agreement of the Parties hereto regarding the purchase and sale of the Property
and all prior agreements, understandings, representations or negotiations are hereby
superseded, terminated and canceled in their entirety, and are of no further force or
effect.
14. AMENDMENTS. This Agreement may not be modified or amended except in
writing by the Parties.
11
15-4744/121328
15. APPLICABLE LAW. The Parties hereto acknowledge that this Agreement has
been negotiated and entered into in the State of California. The Parties hereto
expressly agree that this Agreement shall in all respects be governed by the laws of
the State of California.
16. SEVERABILITY. Nothing contained herein shall be construed as to require the
commission of any act contrary to law, and wherever there is any conflict between
any provision contained herein and any present statute, law, ordinance or regulation
as to which the Parties have no legal right to contract, the latter shall prevail, but the
affected provisions of this Agreement shall be limited only to the extent necessary to
bring them within the requirements of such law.
17. SEPARATE COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall,together, constitute and be one and the same instrument.
18. EXHIBITS. The following Exhibits are attached to this Agreement and
incorporated by reference herein:
Exhibit A. Gothard/Garfield Parcel
Exhibit B: Alley Parcel
19. SURVIVAL. All terms and conditions in this Agreement, which represent
continuing obligations and duties of the Parties, that have not been satisfied prior to
close of escrow shall survive close of escrow and transfer of title to Buyer and shall
continue to be binding on the respective obligated party in accordance with their
terms. All representations and warranties and statements made by the respective
parties contained herein or made in writing pursuant to this Agreement are intended
to be, and shall remain, true and correct as of the close of escrow, shall be deemed to
be material, and,together with all conditions, covenants and indemnities made by the
respective parties contained herein or made in writing pursuant to this Agreement
(except as otherwise expressly limited or expanded by the terms of this Agreement),
shall survive the execution and delivery of this Agreement and the close of escrow,
or, to the extent the context requires, beyond any termination of this Agreement
20. LEGAL FEES. In the event suit is brought by either parry 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 parry shall not be entitled to recover its attorney's fees from the non-
prevailing party.
21. ASSIGNMENT. Buyer may not assign, transfer or convey its rights or obligations
under this Agreement without the prior written consent of City, and then only if
Buyer's assignee assumes in writing all of Buyer's obligations hereunder, provided,
however, Buyer shall in no event be released from its obligations hereunder by
reason of such assignment.
12
15-47441121328
22. BROKERAGE COMMISSIONS. Buyer represents to City 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 City to Buyer, if consummated as
contemplated hereby. Buyer 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 Buyer or its agent, employees or
representatives, Buyer will indemnify, defend and hold City free and harmless from
and against any and all loss, liability, cost, damage and expense (including attorneys'
fees and court costs) in connection therewith. Buyer agrees to pay, at its sole cost
and expense, when due, any and all brokerage commissions incurred by Buyer
heretofore or hereafter incurred prior to close of escrow.
23. MISCELLANEOUS.
23.1. 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.
23.2. 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
23.3. Exhibits and Schedules The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference.
23.4. 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
23.5. 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.
13
15-4744/121328
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by
and through their authorized offices the day, month and year first above written.
Buyer: CITY OF HUNTINGTON BEACH, a
YOUNG MEN'S CHRISTIAN ASSOCIATION municipal corporation of the State of California
OF ORANGE COUNTY,
a California nonprofit public benefit corporation
By: } May
Its: Gnu
4
By- C' Clerk
Its:
INIT VIEWED AND APPROVED.
i anager
APPROVED AST RM-
Attorney
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14
1 5-4 744/12 1 32 8
EXHIBIT A
DRAF. M.-
/- q- GARFIELD AVENUE
NW COR LOT 12, BLOCK I , EASEMENT FOR STREET AND
"B, M.M.7/27-28, (32 ) PUBLIC UTILITY PURPOSES (32 )
POINT OF BEGINNING. I RECORDED 911111974, IN
I (EAST, 50.00') if�� 0 11 o
10' N 90'00'00"E, 50.00' i c 4v/-r6v O.R.
RESERVA TION
FOR STREET 1 13,
30' AND PUBLIC
o�
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LPURPOSES �9 40
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PAGES 27 AND 28 OF M.M.
LINE TABLE.' LEGEND:
L 1= S 00 00'00" W, 28.24'
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L4= (EAST, 50.00) = REMAINDER PARCEL OF LOT 12, 7/27-28 M.M.,
3262 SQ FTf, (0.075 ACRES)
XXXX GARFIELD STREET
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DEPARTMENT OF PUBLIC WORKS
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