HomeMy WebLinkAboutAgreement for Acquisition and Escrow Instructions - Lewie P. Recorded in Official Records,Orange County
CpmmOnWealth Land We COmpanY Hugh Nguyen,Clerk-Recorder
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Commonwealth Land Title Company * $ R 0 0 0 6 4 1 9 1 3 8 $
W KW RECCNMD PWL TM DOCUK9NT 20130007164291:55 pm 12131/13
AND TAX STATEMEWIM TO: 48 406 D10 5
City of Huntington Beach, s California 0.00 0.00 0.00 0.0012.00 0.00 0.00 0.00
municipal corporation
2000 Main Street
Huntington Beach, CA 926"
APN: 110-153r04, 110-164-21
Escrow No: 092902SO-913-GKD
Title No: 8021014
Space above this line for Recorder's use
C3MNT DEED �--
THE UNDERSIGNED GRANTOR(S) DECLARE(S)
DOCUMENTARY TRANSFER TAX IS$0.00, CITY TAX $ 0.00
FREE RECORDING: This Instrument Is for the benefit of the City of HuntingtonAeach,and Is entitled to be recorded
without fee.
City of Huntinton Beach,AND
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Lewis Paris Derigo and Crystal 3une Derigo, Trustees of the L.P. Derigo Family Trust, dated March 14,
2002
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:
See Exhibit"A"for legal description attached hereto and made a part hereof
Commonly known as: APN: 110-153-04 A 110-164-21 Vacant Land, Huntington Beach, CA
Dated: member 1 2013 Lewis Paris Derlgo and Crystal Jima Derigo,
r Tnotow of tft L.P. Derigo Pandly Trust, dated
STATE OF CALIFORNIA y .+ March 14,2002
COUNTY OF Z (�
before me, ` \
r Notary Public, a Paris rigo,
(here insert name an tf e ) r Its. Trustees
p aln!rly a ear I, i
who prov d to me o the basis of satisfatfory evidence to Y O r j
be the person(s) whose name(s)
ubscrlbed to the 'J x
withinr
ument and acknowledg to me that W stal June rigo, pN 1
ecuted the saRR� Inr k ! eir uthorized Its: Trustees 1-9
ca a , and that by fjf 11 f eJL;slgn e(s) on the ,
instrument the person(s), or the entity upon behalf of which A
the person(s) acted, execute a instrument. In A
I certify under PENALTY OF PELparagraph
ws of the M
State of Caitfornl . at the fo true and DEAiiaE K. DODGE�KROVtsCOMM. # 1966091correct. NOTW PusuwcWITNESS my h nd Io Ia ow► n*eW o tm
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Signature
(This area for notary stamp)
MAIL TAX STATEMENTS AS DIRECTED ABOVE
Commonwealth Land Title Company
RECORDING REQUESTED BY
Commonwealth Land Title Company
WHEN RECORDED MAIL THIS DOCUMENT
AND TAX STATEMENTS TO:
City of Huntington Beams, a California
municipal corporation
2000 Main Street
Huntington Beach, CA 92"S
APN: 110-15"41110-164-21
Escrow No: 09290250-918-GKD
Title No: 8021014
Space above this line for Recorder's use
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S)
DOCUMENTARY TRANSFER TAX IS$0.00, CITY TAX $ 0.00
FREE RECORDING: This Instrument is for the benefit of the City of Huntington Beach,and is entitled to be recorded
without fee.
City of Huntinton Beach,AND
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Lewle Paris Derigo and Crystal 3une Derigo, Trustees of the L.P. Derigo Family Trust, :sated March 14,
2002
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:
See Exhibit"A"for legal description attached hereto and made a part hereof
Commonly known as: APN: 110-153-04 & 110-164-21 Vacant Land, Huntington Beach, CA
Dated: December 10. 2013 Lewie Paris Derlso, and CrpWl 3une Derigo,
Tnotess of the L.P. Defto Family Trust, deted
STATE OF CAUFORNIA d Mauch 14, 2002
COUNTY OF f��
before me, Q
Notary Public, core Paris rigo,
(here insert name a tit•e th o ) ` Its: Trustees r
pe M
a ear i �� ,
I ".
who prov d to me orYthe basis of satista ory evidence to V
be the person(s) whose name(s) t ee ubscribed to the " 4/'11� ✓ O x
within ument and acknowledged to me that h# C�ystai June rigo, �-
executed the sa in err uthorized Its; Trustees
capa (ies), and that by p syr a sign refs) on the c�
instrument the person(s), or the entity upon behalf of which
the person(s) acted, execute a instrument. A G+
I certify under PENALTY OF PE URY under the'laws of the Q
State of Californi at the fore in paragraph raph is true and bEAi`1NE K. DODGE-KEiOWS py
9 g P 9 COMM.* 196609E a Z `� a
correct. U ao1r vueuc•c �aa
WITNESS my h nd o Sal U �►wce"coubly O
i My Commi"lon ExWrai- _
January s'4016
Signature
(This area for notary stamp)
MAIL TAX STATEMENTS AS DIRECTED ABOVE
GOVERNMENT CODE SECTION 27361.7
I CERTIFY UNDER PENALTY OF PERJURY THAT THE
NOTARY SEAL ON THE DOCUMENT TO WHICH THIS
STATEMENT IS ATTACHED READS AS FOLLOWS:
NAME OF NOTARY: Deanne K. Dodge-Krows
DATE COMMISSION EXPIRES: January 8, 2016
COUNTY WHERE BOND IS FILED: Orange
COMMISSION NO.: 1966031
VENDOR NO.: TCC 1
PLACE OF EXECUTION: Orange
DATE: 12/12/2013
Lawyers Title,California
EXHIBIT "A"
All that certain real property situated in the County of Orange, State of California,
described as follows:
Parcel 1: Lot 44, Tract 32, as filed in Book 9, Page 31 of Miscellaneous Maps, records of
Orange County, California.
Parcel 2: Lot 35, in Bolock "A", Tract No. 44, as shown on a map recorded in Book 9,
Page of Miscellaneous Maps, records of Orange County, California.
Together with all the Grantor's right, title and interes in and to those certain Community
Oil & Gas Leases recorded respectively March 9, 1921 in Book 13, Page 307 of Leases and
August 2, 1921 in book 26, Page 193 of Leases
Excepting and reserving therefrom all oil, oil rights, minerals meral rights natural gas,
natural gas rights, and other hydrocabons by whatsoever name known, geothermal
steam, and all products derived from any of the foregoing that may be within or under the
parcel of land hereinabove described, together with perpetual right of drilling, mining,
exploring, and operating therefore, and storing in and removing the same from said land
or any other land, including the right to whipstock or directionally drill and mine from
lands other than those hereinabove described, oil or gas wells, tunnels and shafts into,
through or across the subsurface of the land hereinabove described, an to bottom such
whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond
exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and
operate any such wells or mines, without, however the right to drill, mine store, explore
and operate through the surface or the upper 500 feet of the subsurface of the land
hereinabove described.
legal rev. (010698)
City ®f Huntington Beach
2000 Main Street • Huntington Beach, CA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
® CITY CLERK
DEED CERTIFICATION
CITY OF HUNTINGTON BEACH
This is to certify that the interest in real property conveyed by the Deed dated
DECEMBER 12, 2013, from Lewie Paris Derigo and Crystal June Derigo,
Trustees of the L. P. Derigo Family Trust, dated March 14, 2002 to the CITY
OF HUNTINGTON BEACH is hereby accepted by the undersigned officer or
agent on behalf of the City Council of the City of Huntington Beach pursuant to
the authority conferred by Resolution No. 3537 of the City Council of the City of
Huntington Beach adopted on August 7, 1972, and the grantee consents to the
recordation thereof by its duly authorized officer.
Dated: December 18, 2013
CITY OF HUNTINGTON BEACH
JOAN L. FLYNN, CIVIC
CITY CLERK
g:/ollowup/ eeds/deedGa�rt�0.02.doc Government Code§27281
Sister Cities p, ire#Wn ® Waitakere, New Zealand
(Telephone, 714-536-52271
Dept. ID 13-38 Page 1 of 2
Meeting Date: 11/18/2013
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CITY OF HUNTINGTON BEACH
g g REQUEST FOR. CITY COUNCIL ACTION
MEETING DATE: 11/18/2013
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Ken Domer, Assistant City Manager
SUBJECT: Approve and authorize execution of an Agreement for Acquisition and Escrow
Instructions for the purchase of two encyclopedia parcels (APNs 110-153-04 and
110-164-21) in the vicinity of Goldenwest St. and Ellis Ave.
Statement of Issue: City Council is asked to approve an agreement in the amount of $30,000,
along with escrow fees not to exceed $3,500, with Lewie and June Derigo for the purchase of two
encyclopedia parcels (APNs 110-153-04 and 110-164-21) on the north side of Ellis Avenue
between Edwards Street and Goldenwest Street.
Financial Impact: Funds not to exceed $33,500 are budgeted in the Park Acquisition and
Development Fund Land Purchase Account (20945101.81000).
Recommended Action:
A) Authorize the Mayor and City Clerk to execute the "Agreement for Acquisition and Escrow
Instructions;" and,
B) Authorize the City Manager to execute any other related escrow documents.
Alternative Action(s): Do not approve the Agreement and direct staff accordingly.
Analysis:
There are 305 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 43 parcels
over 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
acquisitions through the Park Acquisition and Development Fund. The City Council approved
$60,000 of funding for the purchase of Central Park encyclopedia parcels in the FY 2013/14 budget.
The City negotiated the purchase price based on previous sale prices and current market values for
open space land. The balance of the costs necessary to acquire these parcels, including title and
escrow fees, will be covered by funds allocated in the Park Acquisition and Development Fund.
Staff recommends approval of the proposed purchase agreement in support of the City's goal to
have full ownership and control of this section of Central Park.
HB -189- Item 10. - 1
Dept. ID 13-38 Page 2 of 2
Meeting Date: 11/18/2013
Environmental Status: Not applicable.
Strategic Plan Goal: Improve the City's infrastructure
Attachment(s):
1. Agreement for Acquisition and Escrow Instructions
2. Site Map of Encyclopedia Lots
Item 10. - 2 HB -1 90-
ATTACHMENT # 1
AGREEMENT FOR ACQUISITION
AND ESCROW INSTRUCTIONS
This AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this day of /VO4-�M 2013, and
constitutes an agreement by which Lewie P. Derigo and June C. Derigo, Trustees of the L. P.
Derigo Family Trust, dated March 14, 2002 ("Sellers") 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" attached hereto, bearing Orange
County Assessor's Parcel Numbers 110-153-04 and 110-164-21 ("Property").
The terms and conditions of this Agreement and the instructions to Lawyers Title
Company ("Escrow Holder") with regard to the escrow ("Escrow") created pursuant hereto are
as follows:
1. Purchase and Sale. For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Sellers agrees to sell the Property to Buyer, and Buyer agrees to purchase
the Property from Sellers, upon the terms and conditions herein set forth.
2. Purchase Price. The purchase price("Purchase Price") for the Property shall be THIRTY
THOUSAND DOLLARS ($30,000). 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, Sellers, on behalf of their self and their
respective successors and assigns, hereby acknowledges that this Agreement provides full
payment for the acquisition of the Property by Buyer, and Sellers hereby expressly and
unconditionally waives any and all claims for damages, relocation assistance benefits,
severance damages, interest, loss of goodwill, claims for inverse condemnation or
unreasonable pre-condemnation conduct, or any other compensation or benefits, other
than as already expressly 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. Sellers acknowledge and agree 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. Sellers, on behalf of their self and their successors and
assigns, hereby fully releases Buyer, its successors, agents, representatives, and assigns,
Sellers I ials' Buyer'slnitals
Page 1 of 14
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. Sellers further release and agree 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.
C. The parties hereto hereby agree that all rights under Section 1542 of the Civil
Code of the State of California are hereby waived. Civil Code Section 1542
provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his/her favor at the time of
executing the release, which if known by him/her must have
materially affected his/her settlement with the debtor."
Notwithstanding the provisions of Civil Code Section 1542, Sellers 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 Sellers at any time heretofore had or claimed to have or which Sellers 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.
Sellers' Initials
4. Payment of Purchase Price. 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.
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 Sellers ("Opening Date"). Escrow Holder shall notify
Buyer and Sellers, in writing, of the date Escrow is opened and the Closing Date, as
I itials' Buyer's Ini als
Page 2 of 14
defined in Paragraph 5(b), below. In addition, Buyer and Sellers 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
Sellers that title to the Property shall be conveyed to Buyer by Sellers 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. Sellers 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(1)hereof.
Sellers covenant and agree that during the term of this Escrow, Sellers 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
be subject to Buyer's approval and must be eliminated or ameliorated to Buyer's satisfaction by
Sellers 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 Sellers agrees to cause all such liens to
be eliminated at Sellers' sole cost and expense prior to the Closing Date.
Is CA
Sellers Initials' Buyer'slni Is
Page 3 of 14
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 Lawyers Title Company to issue a
Preliminary Title Report relating to the Property. Within fifteen (15) days after
escrow has been opened, the City will cause Lawyers Title Company to issue an
Amendment to Escrow Instructions, which indicates those title exceptions that the
City will accept. Sellers will have ten (10) days after receipt of such amendment
to review and approve it. In the event of non-approval, escrow will fail and each
party will instruct Lawyers Title Company to cancel the escrow.
(2) Representations Warranties and Covenants of Sellers. Sellers shall have
duly performed each and every agreement to be performed by Sellers hereunder
and Sellers' 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
Sellers or any general partners of Sellers.
(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
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
�ellerdlKtials Buyer'slniti s
Page 4 of 14
inspections and tests as maybe 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 Sellers 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.
(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.
b. Conditions to Sellers' Obli ag tion. For the benefit of Sellers, the Close of Escrow
shall be conditioned upon the occurrence and/or satisfaction of each of the following
conditions (or Sellers' waiver thereof, it being agreed that Sellers 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) Bu. er�epresentations. All representations and warranties made by
Buyer to Sellers in this Agreement shall be true and correct as of the Close of
Escrow.
9. Deposits by Sellers. At least one (1) business day prior to the Close of Escrow, Sellers
shall deposit or cause to be deposited with Escrow Holder the following documents and
instruments:
a. Sellers' Certificate Federal. A Certificate of Nonforeign Status (Sellers'
Certificate), duly executed by Sellers in the form attached hereto as Exhibit "C."
b. California Withholding Exemption Certificate. A California Withholding
Exemption Certificate (or in the event the Sellers are 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 Sellers' proceeds or that Sellers
are exempt from such withholding requirement.
C. Grant Deed. The Grant Deed conveying the Property to Buyer duly executed by
Sellers, acknowledged and in recordable form.
10. Deposits by Bum. 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
" Sellers ni�tials' Buyer'slni Is
Page 5 of 14
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 Sellers for document drafting, recording, and miscellaneous charges. If, as a result
of no fault of Buyer or Sellers, 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 Sellers 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 Sellers are 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
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) Sellers warrant 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
Sellers Initials' Buyer'slnit' s
Page 6 of 14
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 Sellers' Certificate and Bill of Sale, executed by
Sellers, 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. Sellers' Representations and Warranties. In consideration of Buyer entering into this
Agreement, and as an inducement to Buyer to purchase the Property, Sellers makes the following
representations and warranties, each of which is material and is being relied upon by Buyer (and
the continued truth and accuracy of which shall constitute a condition precedent to Buyer's
obligations hereunder):
a. Authorization. This Agreement has been duly and validly authorized, executed
and delivered by Sellers, and no other action is requisite to the execution and delivery of
this Agreement by Sellers.
b. Threatened Actions. There are no actions, suits or proceedings pending against,
or, to the best of Sellers' 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 Sellers of the transactions contemplated
pursuant to this Agreement.
d. No Violation of Law. To the best of Sellers' knowledge, there is no violation of
law or governmental regulation by Sellers with respect to the Property.
e. Condemnation. There is no pending, or, to the best of Sellers' 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 Sellers' 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 Sellers.
/'VIRers4fil Buyer'slnit' s
Page 7 of 14
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 Sellers' 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 Sellers is true and accurate.
i. Licensed Permits. To the best of Sellers' knowledge, Sellers 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 Sellers to Buyer herein, Sellers
have 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. Sellers has not used the Property, or any
portion thereof, for the production, disposal, or storage of any hazardous substances, and
Sellers 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, Sellers
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. Sellers agree that Buyer may, with Sellers' prior approval, make
inquiries of governmental agencies regarding such matters, without liability to Sellers 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
"ellers/tt! Buyer'sini Is
Page 8 of 14
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. Sellers agree to indemnify, defend with counsel selected by Buyer,
protect and hold harmless Buyer, its City Council members, its directors, officers, staff,
employees, agents, contractors, assigns, and any successor or successors to Buyer's
interest from and against all claims, actual damages (including, but not limited to, special
and consequential damages), punitive damages, injuries, costs, response costs, losses,
demands, debts, liens, liabilities, causes of action, suits, legal or administrative
proceedings, interest, fines, charges, penalties, and expenses (including, but not limited
to, attorneys' and expert witness' fees and costs incurred in connection with defending
against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid,
incurred or suffered by, or asserted against, the Property, or any indemnified party
directly or indirectly arising from or attributable to: (i) any breach by Sellers 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.
1. Pollutants. No pollutants or waste materials from the Property have ever been
discharged by Sellers into any body of water, and Sellers have 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 Sellers as a
waste storage or disposal site, and Sellers are not aware of any such prior uses.
Iiers itials' Buyer's hi s
Page 9 of 14
n. No Notices. Sellers have 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 Sellers entering into this
Agreement, and as an inducement to Sellers to sell the Property to Buyer, Buyer makes the
following representations and warranties, each of which is material and is being relied upon by
Sellers (the continued truth and accuracy of which shall constitute a condition precedent to
Sellers' obligations hereunder):
a. This Agreement and all documents executed by Buyer under this Agreement
which are to be delivered to Sellers are, or at the time of Close of Escrow will be, duly
authorized, executed, and delivered by Buyer, and are, or at the Close of Escrow will be
legal, valid, and binding obligations of Buyer, and do not, and at the Close of Escrow will
not violate any provisions of any agreement or judicial order to which Buyer is a party or
to which it is subject.
b. The representations and warranties of Buyer set forth in this Agreement shall be
true on and as of the Close of Escrow as if those representations and warranties were
made on and as of such time.
16. Damage or Condemnation Prior to Closing. Sellers shall promptly notify Buyer of any
knowledge by Sellers 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, Sellers 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,
Sellers I itials' Buyer'slni ' Is
Page 10 of 14
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: Kellee Fritzal
2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
The Sellers' mailing address is:
Lewie P. Derigo
807 Main Street
Huntington Beach, CA 92648
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. Sellers may not assign, transfer or convey its rights or obligations under this
Agreement without the prior written consent of Buyer, and then only if Sellers' assignee assumes
in writing all of Sellers' obligations hereunder; provided, however, Sellers shall in no event be
released from its obligations hereunder by reason of such assignment.
20. Sellers' Indemnification. Sellers hereby agree 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 Sellers of their representations, warranties and covenants contained in this
Agreement.
Piersl_tCi als' Buyer'sln' i Is
Page 11 of 14
21. Brokerage Commissions. Sellers represent 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 Sellers to Buyer, if consummated as contemplated hereby. Sellers agree 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 Sellers or its agent, employees
or representatives, Sellers 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. Sellers agree to pay, at its sole cost and expense, when due, any
and all brokerage commissions incurred by Sellers heretofore or hereafter incurred prior to close
of escrow.
22. Miscellaneous.
a. Survival of Covenants. The covenants, representations and warranties of both
Buyer and Sellers set forth in this Agreement shall survive the recordation of the Grant
Deed and the Close of Escrow.
b. Required Actions of Buyer and Sellers. Buyer and Sellers 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.
I itials Buyer'slniti s
Page 12 of 14
h. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties
hereto.
i. Waiver. The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision
hereof.
j. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, with the exception of definitions to be
construed under Federal laws cited in Paragraph 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 Sellers 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. Sellers warrant that there are no tenants or written or oral leases on all or
any portion of the property and Sellers further agree 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 Sellers.
Sellers I itials' Buyer'slni ' Is
Page 13 of 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
DATED: "� -/Lee ��� Sellers:
ie P. Derigo, Trustee
Cr al June D o, Trustee
DATED: 0 V. Buyer:
CITY OF HUNTINGTON BEACH
A California municipal corporation
Axe C�V�
Mayor
jt
City lerk
APPROVED AS TO FORM: REVIE ED,AND APPROVED:
ity Attorney IV
ager
INMATED AND PPROVED:
Cant City Manager
Sellers I tials' Buyer'slnity Is
Page 14 of 14
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