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HomeMy WebLinkAboutReal Estate Purchase Agreements Approved - Unimproved real p /3 R07MM-el* 477/ /99 IVAeele e-4 go Council/Agency Meeting Held: 600./a ;Approved f red/Continued to: ❑ Conditionally Approved ❑ Denied Awm4r 61Y Clerk's Signature Council Meeting Date: December 6, 1999 Department ID Number: 99-21 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUN I MEMBERS SUBMITTED BY: GAIL HUTTON, City Attorney f ri/?�19q PREPARED BY: GAIL HUTTON, City Attorney SUBJECT: APPROVE SAMPLE AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS FOR UNIMPROVED REAL PROPERTY LOCATED AT CORNER OF CLAY AVENUE AND MAIN STREET (APN 111-150-25) —HOLLY-SEACLIFF PROJECT AREA Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Approve real estate purchase agreements and authorization to open escrows for the acquisition of unimproved real property located at corner of Clay Avenue and Main Street (APN 111-150-25), as part of the Holly-Seacliff Project. Funding Source: PLC Land Acquisition Account No. E-CF-CD-239-6-10-00 in the amount of$11,200.00. Recommended Action: (1) Approve Sample Agreement for Purchase and Sale of Real Property and Escrow Instructions and authorize Mayor and City Clerk, on behalf of the City of Huntington Beach, to sign and attest to said agreement when prepared in final form and as approved as to form by the City Attorney; with the 11 th and 12th persons (out of a total of 12 people)'who own undivided interests in this property; and (2) Authorize City staff to open two escrows, at First American Title Company in Santa Ana, to consummate the acquisition of the interests of these two persons. Alternative Action(s): Do not authorize the real estate purchase agreements and open escrows. Analysis: In August of 1998, attorney Robert J. Wheeler was hired as Special Counsel to acquire all outstanding interests in the unimproved property at the intersection of Clay Avenue and Main Street (APN 111-150-25). Acquisition of this parcel is part of the Holly- Seacliff Project. The vast majority of the land area of this parcel will be used for the construction of the extension of Gothard Street. q Twelve different people, most of whom live in other parts of the country, own undivided interests in this parcel. The City appraised the parcel at $224,000.00. Prior to March of this year, Mr. Wheeler was able to find 10 of the 12 owners. Nine of these people [(1) Patricia H. Denslow; (2) Vernon L. Obarr; (3) Jane L. Ransford; (4) Robert B. Lindley; (5) Daniel C. Lindley; (6) Bayard Thomas Lindley, Jr.; (7) Catherine Anne Lindley; (8)Vera M. Gardner; and (9) James C. Gardner] agreed to sell their undivided interests in the property to the City, at the City's appraised value, and signed and returned to Mr. Wheeler their signed real estate sales/escrow agreements. The interests of these nine sellers comprise 75% of the total ownership interests. On March 15, 1999, the City Council, by a 6-0 vote (Councilmember Julien being absent), taking action on the staff report recommendations of the City Attorney: (a) authorized the Mayor and City Clerk, on behalf of the City, to sign and attest the real estate sales agreements with these nine persons; and (b) authorized City staff to open escrows at First American Title Company in Santa Ana, to consummate the acquisition of the interests of these nine persons. .Subsequent to March of this year, the City has formally acquired the interests of seven of these nine sellers. Only two escrows still remain open (with sellers Vera M. Gardner and James C. Gardner), but they should close shortly. No problems are anticipated in closing these two escrows. The tenth owner (as to an undivided 20% interest in the property) is Barbara J. Atkinson, as executrix of the estate of her late mother Barbara Bomann. Ms. Atkinson did not accept the City's purchase offers and so, on February 2, 1999, the City filed a condemnation action in the Orange County Superior Court to acquire this interest. On the same day, Ms. Atkinson filed an inverse condemnation action against the City. Both of these lawsuits are presently pending in court and were recently consolidated by the judge to whom both cases had been assigned. Approximately one month ago, after over a year of searching, Mr. Wheeler was able to find the 11 to and 12th owners (Barbara Diane Anthony and Steven Kent Anthony). Both of these people own undivided 2 '/2% interests in the property. Both of them accepted the City's offer ($5,600.00 for each person), at the City's appraised value, and have returned to Mr. Wheeler their signed real estate sales/escrow agreements. Escrows now need to be opened to acquire the interests of these two remaining sellers. A sample real estate sale/escrow agreement is attached to this memorandum. Attachments : DescriptionCity Clerk's Page Number No. 1 Sample Agreement for Purchase and Sale of Real Property and Escrow Instructions i' P «F r- AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS Escrow No. Date of Opening of Escrow: ,1999 To: First American Title Insurance Company ("Escrow Holder") Attention: Escrow Officer Telephone: (714) THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (this "Agreement") is made this day of 1999, by and between THE CITY OF HUNTINGTON BEACH, a municipal corporation ("Buyer"), and. ("Seller"). RECITALS: A. Seller is the owner of an undivided th interest in that certain unimproved parcel of real property located in the City of Huntington Beach, County of Orange, State of California (the "Property"), legally described as follows: Lot 22 in Block B of Garfield Street Addition to Huntington Beach, as shown on a map recorded in Book 7, Pages 27 and 28 of Miscellaneous Maps, Records of Orange County, California. B. Prior to the execution of this Agreement, Seller accepted Buyer's written offer to acquire Seller's undivided interest in the Property for the purposes of constructing and maintaining certain streets, roadways, sidewalks and other improvements ("Project). NOW, THEREFORE, the parties to this Agreement agree to transfer fee simple title to Seller's undivided interest in the Property, from Seller to Buyer, in accordance with the following terms and conditions: 1 wheel er/agree/master/03/08/99 SAMPLE r i . ARTICLE I TERMS AND CONDITIONS 1.1 Purchase and Sale of Seller's Undivided Interest in the Property. In its written settlement offer, Buyer represented to Seller that, according to Buyer's calculations, Seller owned an undivided th interest in the Property. However it is the mutual intent of the parties that, pursuant to the terms of this Agreement, Seller conveys to Buyer, and Buyer acquires from Seller, in fee simple, title to all interest Buyer may have had or currently holds and owns in the Property. 1.2 Opening of Escrow. Within ten (10) business days after the execution of this Agreement by Seller and Buyer, the parties shall open an escrow ("Escrow") with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that Buyer delivers a fully executed Agreement to Escrow Holder. 1.3 Payment of Purchase Price. (a) Amount of Purchase Price. The purchase price for the conveyance and transfer of Seller's undivided interest in the Property to Buyer shall be (S ) ("Purchase Price"). (b) Payment of Purchase Price. The Purchase Price shall be deposited by Buyer into Escrow within fifteen (15) business days following the opening of Escrow. Buyer shall deposit the Purchase Price with Escrow Holder in "good funds" payable to Seller at the time of closing. "Good funds" shall mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a financial institution located in the State of California, check from the City of Huntington Beach, or cash. (c) Interests Conveyed. It is understood and agreed by and between Buyer and Seller that the Purchase Price set forth above is paid as full and final consideration of all of the following: (i) A fee simple interest in and to the Property, for the purposes of the construction, operation, and maintenance of a public roadway thereon, including all uses incident to the use of the Property as a public right of way, including but not limited to the placement of utilities on or over the Property, accessways for vehicular and pedestrian access, bus bays, signage, curbs, gutters, drainage facilities, traffic control devices or other roadway improvements; and 2 wheeler/agree/master/03/08/99 SAMPLE (ii) All improvements, structures, landscaping, paving and any appurtenances to the Property, including but not limited to any oil production facilities located on the Property. (d) Other Interests Included. Payment of the Purchase Price by Buyer to Seller represents total just compensation for Buyer's acquisition of Seller's undivided interest'in the Property, all damages for.lost oil production or other economic damages due to interruptions of sewer, water, and electrical utility services, precondemnation damages, interest, attorney's fees or other litigation expenses, and any and all items of compensation or damage arising out of the planning, negotiation, and acquisition by the Buyer of Seller's undivided interest in the Property. 1.4 Additional Funds and Documents Required from Buyer and Seller. (a) Buyer. Before 12:00 noon on the date preceding the Closing Date, Buyer shall deposit with Escrow Holder all additional funds and/or documents (executed and acknowledged, if appropriate) which are necessary to close escrow and otherwise comply with the terms of this Agreement. (b) Seller. Within twenty(20) business days following the date that Escrow is opened hereunder, Seller will deposit with Escrow Holder an executed Grant Deed ("Grant Deed") conveying a fee simple title to Seller's undivided interest in the Property, together with such funds and other items and instruments as may be necessary in order for the Escrow Holder to comply with this Agreement. Escrow Holder shall submit the executed Grant Deed to Buyer for review and acceptance, as may be required to put the Grant Deed in recordable form, whereupon Buyer shall immediately submit the Grant Deed, with the acceptance, to Escrow Holder pending Close of Escrow- 1.5 Closing Date; Time of Essence. (a) Closing Date. Unless otherwise terminated by Buyer as provided below, Escrow shall close within sixty (60) days from the date Escrow is opened. The terms "the Close of Escrow", and/or the "Closing" as used herein shall mean the time Seller's Grant Deed is filed for recording by the Escrow Holder in the Office of the County Recorder of Orange County, California, the Title Company has issued the Title Policy provided for in subsection (c) below, all closing costs and other costs are paid in full, and all disbursements of any remaining funds in Escrow, or other disbursements as may be required to close Escrow, are made by Escrow Holder to the appropriate parties. (b) Time of Essence. Buyer and Seller specifically understand and agree that time is of the essence and Buyer and Sellers specifically agree to strictly comply and perform their obligations herein in the time and manner specified, and waive any and all rights to claim such compliance by mere substantial compliance with the terms of this Agreement. The time for Closing may be extended, but only by way of a writing signed by all parties. 3 wheel er/agree/master/03/08/99 SAMPLE (c) Title Policy. Upon Seller's deposit of the Grant Deed in favor of Buyer in recordable condition covering Seller's undivided interest in the Property, and prior to Close of Escrow, Escrow Holder shall cause to be issued and delivered to Buyer as of the Closing a C.L.T.A. standard coverage policy of title insurance ("Title Policy") issued by First American Title Insurance Company ("Title Company"), with liability in the amount of the.Purchase Price, covering the Property and reflecting the fee simple title to Seller's undivided interest in the Property in favor of Buyer free of encumbrances; except: (i) The standard printed exceptions and exclusions contained in the CLTA form policy; and (ii) Any exceptions created by or consented to in writing by Buyer, including without limitation,any exceptions arising by reason of Buyer's.filing of an eminent domain action, or securing of an order for possession of or entry on the Property. 1.6 Conditions Precedent To Close Of Escrow. (a) Conditions to Buyer's Obligations. The obligations of Buyer under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Buyer of each of the following conditions precedent: (i) Issuance by Title Company of the Title Policy reflecting a fee simple title to Seller's undivided interest in the Property granted to Buyer. (ii) Deposit by Seller of all instruments and funds provided for in this Agreement, necessary to the Closing. (b) Conditions to Seller's Obligations - The obligations of the Seller under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by the Seller of each of the following conditions precedent: (i) Delivery by Buyer of all instruments and funds provided for in this Agreement necessary to the Closing. 1.7 Escrow Provisions. (a) Escrow Instructions. This Agreement, when signed by Buyer and Seller, shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, Buyer and, Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are consistent with and do not conflict with the provisions of this Agreement. In the event of any such conflict, the provisions of this Agreement shall prevail. 4 wheel er/agree/master/03/08/99 SAMPLE (b) General Escrow Provisions. Upon Close of Escrow, Escrow Holder shall deliver the Title Policy to Buyer and instruct the County Recorder of Orange County, California to mail the recorded Grant Deed, to Buyer at the address set forth in Section 3.2 after recordation. All funds received in this Escrow shall be deposited in one or more general escrow accounts of the Escrow Holder with any bank doing business in Orange County, California, and may be disbursed to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. 1.8 Amendments and Counterparts. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if all of the parties' signatures were on one document. 1.9 Payment of Costs. Buyer shall pay Buyer's and Seller's Escrow fees, any premium charges for the Title Policy, the charge for drawing the Grant Deed, and the charges for recording the Grant Deed. Clearing of all existing encumbrances,judgments, or liens, including any fees or charges incurred, shall be the sole responsibility of Seller. 1.10 Termination and Cancellation of Escrow. If Escrow fails to close as provided above, any party who then shall have fully complied with their instructions and met their conditions to Close of Escrow may, in writing, demand of Escrow Holder the return of their money, documents, instruments, or property deposited into escrow. If no party has so complied, no demand for return of any money, documents, instruments, or property will be recognized by Escrow Holder until five (5) business days after Escrow Holder has mailed written notice of such demand to all other parties at their respective addresses shown in these instructions, and if any party raises any objection to such return, Escrow Holder is authorized to hold all such money, documents, instruments, or property until instructed by a court of competent jurisdiction or joint instruction of the parties. 1.11 Brokera.Re Commissions. Seller represents to Buyer that no third party is owed any payment or commissions as a result of the transfer of the property interests provided hereunder, and Seller indemnities and holds the Buyer harmless from and against all liabilities, costs, damages and expenses, including, without limitation, attorneys' fees, resulting from any claims of fees or commissions. 1.12 Hazardous Substances Disclosure. The Property, and Seller's undivided interest therein, are subject to a disclosure as designated under Section 25359.7 of the California Health & Safety Code (as may be amended); whereby a Seller is required to disclose the presence of any hazardous substances that have come to be located on or beneath the property before Close of Escrow. It is understood and agreed between Buyer and Seller that closing of this escrow is subject to and contingent upon receipt and approval of said Disclosure Statement by Buyer, and 5 wheeler/2gree/master/03/08/99 SAMPLE that Buyer may, in its sole discretion, cancel this escrow as a result of the information provided in said Disclosure Statement, or as a result of subsequent information provided by Seller to Buyer concerning Contamination on the Property, without any further liability of Buyer to Seller. Review and approval of the Disclosure Statement shall not be unreasonably withheld or delayed by Buyer. 1.13 Contamination Defined. The term "Contamination" as used in this.Agreement shall mean and refer to any environmental.contamination of any type or nature including but.not limited to the following substances, whether in the soil, air, surface water, perched water or groundwater, or in any other medium: any "hazardous substance„ as defined. under Title 42 U.S.C. Section 9601 (14) or under California Health & Safety Code Section 25281 (g); any "hazardous waste, as defined under Title 42 U.S.C. Section 6903(5) and.under.California Health & Safety Code Section 25117; any "hazardous substance„ as defined under California Health & Safety Code Sections 25281 and 25316; any "hazardous material" as defined under California Health & Safety Code Section 25260 (e) ; any chemical listed pursuant to California Health & Safety Code Section 25249.8; any petroleum hydrocarbon material or petroleum byproduct, refined and unrefined, including but not limited to any crude oil-or any fraction.thereof, and any additive to any refined petroleum product, as well as any asbestos or asbestos containing material. 1.14 Buyer Reservation of Rights. Buyer expressly. reserves all rights and remedies under the law against Seller and any prior owner, operator or other responsible party to seek damages, injunctive relief or other remedies in connection with any investigation, remediation, or other obligations Buyer incurs or may incur as a result of Contamination (other than the levels of contamination currently known by Buyer to exist on or in the Property) potentially existing on, in, or under the Property, including but not limited to any action under CERCLA (42 U.S.C. §§ 9601, et seq.), RCRA (42 U.S.C. §§ 6901 et seq.), the California Hazardous Substance Account Act (California Health & Safety Code §§ 25300 et seq.) , the Hazardous Waste Control Law (California Health & Safety Code 25100, et seq.), the Porter Cologne Act (California Water Code 13000, et seq.) , California Health & Safety Code §§ 25280, et seq. and 33459 et seq., California Civil Code §850 et seq., California Civil Code §§ 3479 and 3480 et seq. and other common laws of the State. 1.15 Disclosure of Test Results on Contamination to Buffer. Seller shall disclose any and all lab results, test results and any and all other information concerning the assessment, investigation, monitoring, removal and/or remediation of Contamination on or from the Property to Buyer, in writing, within two (2) days of his or her receipt of such information. The disclosure of this information is in accordance with and a part of the disclosure obligations of said Seller under the above Section 1.12, the Hazardous Substances Disclosure obligation. 6 wheeler/agree/master/03/08/99 SAMPLE 1.16 Buyer's Written Purchase Offer. To the extent not inconsistent herewith, the terms of Buyer's written purchase offer to Seller, dated October 26, 1998, are incorporated herein by reference into this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1 Repayment of Purchase Price Deposit to Buffer. In the event Escrow does not close, for whatever reason, and Buyer does not acquire Seller's undivided interest in the Property as provided for in this Agreement, any and all amounts deposited into Escrow as the Purchase Price by Buyer and all other amounts deposited into Escrow by .Buyer shall be returned by Escrow Holder, less costs incurred by Escrow Holder, to Buyer. 2.2 Possession. Possession of the Property shall be delivered to Buyer at of Close of -Escrow. Pending Close of Escrow, Seller grants to Buyer and Buyer's Contractor-a.right of entry on the Property, for the purposes of coming onto such Property and effectuating the construction .. of the public right of way improvements, utilities, and other improvements contemplated thereon as part of Buyer's implementation of its public roadway improvement project. ARTICLE III MISCELLANEOUS 3.1 Attorneys s Fees. In any action between the parties hereto, seeking enforcement of any of the terms and provisions of this Agreement or the Escrow, �or in connection with the Property, the prevailing party in such action shall be entitled to and recover from the other party, its reasonable attorney's fees and other reasonable expenses in connection with such action or proceeding, in addition to its recoverable court costs. 3.2 Notices. Any notice which either party may desire to give to the other party or to the Escrow Holder must be in writing and may be given by personal delivery or by mailing the same by registered or certified mail, return receipt requested, postage prepaid, to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereafter designate: To Buyer: Robert J. Wheeler, Special Counsel, Office of City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 7 wheeler/agree/master/03/08/99 SAMPLE Copy to: Mr. Bill Holman PLC Land Company 23 Corporate Plaza, Suite 250 Newport Beach, California 92660 To Seller: r To Escrow Holder First American Title-Insurance Company 114 East Fifth Street (P.O. Box 267) Santa Ana, CA 92702 Attention: Escrow Officer Any notice given by mail shall be deemed received forty-eight (48)hours after such notice is deposited in the United States mail;addressed as provided above, with postage fully prepaid. 3.3 Interpretation: Goveming Law. This Agreement shall .be construed according to its fair meaning and as if prepared equally by all parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in-effect at the time of the execution of this Agreement. Any action brought in connection with this Agreement shall be brought in a court of competent jurisdiction located in Orange County, California. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 3.4 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 3.5 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 8 wheeler/agree/master/03/08/99 SAMPLE r= 3.6 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or:circumstances other.than those as to whom or which it is held invalid or unenforceable,.shall.not.be:affected thereby, and each-term and provision.of this Agreement shall.be valid and enforceable to the.fullest extent permitted by law. 3.7 . Merger of Prior Aueements- and Understandings. This-.Agreement and other documents incorporated:herein.by reference contain the entire understanding--between the parties relating to the transaction contemplated hereby and all prior. or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 3.8 . Covenants to Survive .Escrow. The covenants and'agreements contained herein shall survive the Close of Escrow shall.be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns. 3.9 I.R.S.- Form "W-9".. It is further..understood and agreed by-Seller-that closing of this escrow is subject to and contingent upon Seller executing-an.Internal Revenue Service Form W-911 and 1099-S Form, and depositing same with Escrow Holder no later than one (1) day prior to the Close of Escrow. 3.10 Notice of Tax Withholding Requirements. It is further understood and agreed by Buyer and Seller that closing of this escrow is subject to and contingent upon Seller executing a "Transferor's Affidavit of Non-Foreign Status" and California Form 590 (Withholding Exemption Certificate) and depositing a copy of same with Escrow Holder no later than one (1) day prior to the Close of Escrow. In the event Sellers cannot execute the above-referenced Transferor's Affidavit or California Form 590, Seller shall provide written instructions to Buyer. REST OF PAGE NOT USED 9 wheel er/agree/master`03/08/99 SAMPLE 3.11 Counterparts. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if the signatures of all of the parties were on one document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase and Sale of Real Property and Escrow Instructions as of the date first above written. "SELLER" Dated: "BUYER" CITY OF HUNTINGTON BEACH, Dated: By: Mayor ATTEST: By: City Clerk APPROVED AS TO FORM: Robert J. Wheeler, Special Counsel Office of City Attorney City of Huntington Beach to wheeler/agree/master/11/29/99 Council/Agency Meeting Held: Deferred/Continued to: A proved Conditalienionally Appr ved ❑ Denied Clerk's Signature Council Meeting Date: March 15, 1999 Department ID Number: CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: GAIL HUTTON, City Attorney f� �1,13 PREPARED BY: GAIL HUTTON, City Attorney SUBJECT: APPROVE REAL ESTATE PURCHASE AGREEMENTS FOR UNIMPROVED REAL PROPERTY LOCATED AT CORNER OF CLAY AVENUE AND MAIN STREET (APN 111-150-25) Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Approve real estate purchase agreements and authorization to open an escrow for the acquisition of unimproved real property located at corner of Clay Avenue and Main Street (APN 111-150-25), as part of the Holly-Seacliff Project. Funding Source: Acquisition Account No. E-CF-CD-239-6-10-00 Recommended Action: (1) Authorize Mayor and City Clerk, on behalf of the City of Huntington Beach, to sign and attest the real estate purchase agreements with 9 of the 12 persons who own undivided interests in this property; and (2) Authorize City staff to open an escrow, at First American Title Company in Santa Ana, to consummate the acquisition of the interests of these nine persons. Alternative Action(s): Do not authorize the real estate purchase agreements and open escrow. RIQUEST FOR COUNCIL ACTION MEETING DATE: March 15, 1999 DEPARTMENT ID NUMBER: Analysis: In August of 1998, attorney Robert J. Wheeler was hired as Special Counsel to acquire all outstanding interests in the unimproved property at the intersection of Clay Avenue and Main Street (APN .111-150-25). Acquisition of this parcel is part of the Holly-Seacliff Project. The vast majority of the land area of this parcel will be used for the construction of the extension of Gothard Street. Twelve different people, many of whom live in other parts of the country, own undivided interests in this parcel. The City appraised the parcel at $224,000.00. The following nine owners have agreed to sell their undivided interests in the property to the City, at the City's appraised value, and have signed and returned to Mr. Wheeler their signed real estate sales/escrow agreements: (1) Patricia H. Denslow; (2) Vernon Obarr; (3) Jane Ransford; (4) Robert Lindley; (5) Daniel C. Lindley; (6) Bayard T. Lindley, Jr.; (7) Catherine A. Lindley (8) Vera Gardner; and (9) James C. Gardner. The interests of these 9 people comprise 65% of the total ownership interests. On February 2, 1998, the City filed a condemnation complaint in the Orange County Superior Court to acquire the interests of the three remaining owners (Barbara J. Atkinson, Steven Kent Anthony and Barbara Diane Anthony). Ms. Atkinson did not accept the City's purchase offer and Mr. Wheeler was not able to find the other two owners. This condemnation action is presently pending. Environmental Status: Attachment(s): City Clerk's Page Number No. Description lip I 1 Agreement for Purchase and Sale of Real Property and Escrow Instructions RCA Author: 06-CLAY -2- 03/08/99 11:50 AM ATTACHMENT # 1 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS Escrow No. Date of Opening of Escrow: ,1999 To: First American Title Insurance Company ("Escrow Holder") Attention: Escrow Officer Telephone: (714) THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (this "Agreement") is made this day of 1999, by and between THE CITY OF HUNTINGTON BEACH, a municipal corporation ("Buyer"), and ROBERT B. LINDLEY ("Seller"). RECITALS: A. Seller is the owner of an undivided 4/30th interest in that certain unimproved parcel of real property located in the City of Huntington Beach, County of Orange, State of California(the "Property"), legally described as follows: Lot 22 in Block B of Garfield Street Addition to Huntington Beach, as shown on a map recorded in Book 7, Pages 27 and 28 of Miscellaneous Maps, Records of Orange County, California. B. Prior to the execution of this Agreement, Seller accepted Buyer's written offer to acquire Seller's undivided interest in the Property for the purposes of constructing and maintaining certain streets, roadways, sidewalks and other improvements ("Project). NOW, THEREFORE, the parties to this Agreement agree to transfer fee simple title to Seller's undivided interest in the Property, from Seller to Buyer, in accordance with the following terms and conditions: 1 wheeler/agree/master/03/08/99 c SAMPLE ARTICLE I TERMS AND CONDITIONS 1.1 Purchase and Sale of Seller's Undivided Interest in the Property. In its written settlement offer, Buyer represented to Seller that, according to Buyer's calculations, Seller owned an undivided 4/30th interest in the Property. However it is the mutual intent of the parties that, pursuant to the terms of this Agreement, Seller conveys to Buyer, and Buyer acquires from Seller, in fee simple, title to all interest Buyer may have had or currently holds and owns in the Property. 1.2 Opening of Escrow. Within ten (10) business days after the execution of this Agreement by Seller and Buyer, the parties shall open an escrow ("Escrow") with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that Buyer delivers a fully executed Agreement to Escrow Holder. 1.3 Payment of Purchase Price. (a) Amount of Purchase Price. The purchase price for the conveyance and transfer of Seller's undivided interest in the Property to Buyer shall be Twenty-Nine Thousand Eight Hundred and Sixty-Six Dollars ($29,866.00) ("Purchase Price"). (b) Payment of Purchase Price. The Purchase Price shall be deposited by Buyer into Escrow within fifteen (15) business days following the opening.of Escrow. Buyer shall deposit the Purchase Price with Escrow Holder in "good funds" payable to Seller at the time of closing. "Good funds" shall mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a financial institution located in the State of California, check from the City of Huntington Beach, or cash. (c) Interests Conveyed. It is understood and agreed by and between Buyer and Seller that the Purchase Price set forth above is paid as full and final consideration of all of the following: (i) A fee simple interest in and to the Property, for the purposes of the construction, operation, and maintenance of a public roadway thereon, including all uses incident to the use of the Property as a public right of way, including but not limited to the placement of utilities on or over the Property, accessways for vehicular and pedestrian access, bus bays, signage, curbs, gutters, drainage facilities, traffic control devices or other roadway improvements; and 2 wheeler/agree/master/03/08/99 SAMPLE (ii) All improvements, structures, landscaping,paving and any appurtenances to the Property, including but not limited to any oil production facilities located on the Property. (d) Other Interests Included. Payment of the Purchase Price by Buyer to Seller represents total just compensation for Buyer's acquisition of Seller's undivided interest in the Property, all damages for lost oil production or other economic damages due to interruptions of sewer, water, and electrical utility services, precondemnation damages, interest, attorney's fees or other litigation expenses, and any and all items of compensation or damage arising out of the planning, negotiation, and acquisition by the Buyer of Seller's undivided interest in the Property. 1.4 Additional Funds and Documents Required from Buyer and Seller. (a) Buyer. Before 12:00 noon on the date preceding the Closing Date, Buyer shall deposit with Escrow Holder all additional funds and/or documents (executed and acknowledged, if appropriate) which are necessary to close escrow and otherwise comply with the terms of this Agreement. (b) Seller. Within twenty(20) business days following the date that Escrow is opened hereunder, Seller will deposit with Escrow Holder an executed Grant Deed ("Grant Deed") conveying a fee simple title to Seller's undivided interest in the Property, together with such funds and other items and instruments as may be necessary in order for the Escrow Holder to comply with this Agreement. Escrow Holder shall submit the executed Grant Deed to Buyer for review and acceptance, as may be required to put the Grant Deed in recordable form, whereupon Buyer shall immediately submit the Grant Deed, with the acceptance, to Escrow Holder pending Close of Escrow- 1.5 Closing Date; Time of Essence. (a) Closing Date. Unless otherwise terminated by Buyer as provided below, Escrow shall close within sixty (60) days from the date Escrow is opened. The terms "the Close of Escrow", and/or the "Closing" as used herein shall mean the time Seller's Grant Deed is filed for recording by the Escrow Holder in the Office of the County Recorder of Orange County, California, the Title Company has issued the Title Policy provided for in subsection (c) below, all closing costs and other costs are paid in full, and all disbursements of any remaining funds in Escrow, or other disbursements as may be required to close Escrow, are made by Escrow Holder to the appropriate parties. (b) Time of Essence. Buyer and Seller specifically understand and agree that time is of the essence and Buyer and Sellers specifically agree to strictly comply and perform their obligations herein in the time and manner specified, and waive any and all rights to claim such compliance by mere substantial compliance with the terms of this Agreement. The time for Closing may be extended, but only by way of a writing signed by all parties. 3 wheeler/agree/master/03/08/99 SAMPLE (c) Title Policy. Upon Seller's deposit of the Grant Deed in favor of Buyer in recordable condition covering Seller's undivided interest in the Property, and prior to Close of Escrow, Escrow Holder shall cause to be issued and delivered to Buyer as of the Closing a C.L.T.A. standard coverage policy of title insurance ("Title Policy") issued by First American Title Insurance Company ("Title Company"), with liability in the amount of the Purchase Price, covering the Property and reflecting the fee simple title to Seller's undivided interest in the Property in favor of Buyer free of encumbrances; except: (i) The standard printed exceptions and exclusions contained in the CLTA form policy; and (ii) Any exceptions created by or consented to in writing by Buyer, including without limitation, any exceptions arising by reason of Buyer's filing of an eminent domain action, or securing of an order for possession of or entry on the Property. 1.6 Conditions Precedent To Close Of Escrow. (a) Conditions to Buyer's Obligations. The obligations of Buyer under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Buyer of each of the following conditions precedent: (i) Issuance by Title Company of the Title Policy reflecting a fee simple title to Seller's undivided interest in the Property granted to Buyer. (ii) Deposit by Seller of all instruments and funds provided for in this Agreement, necessary to the Closing. (b) Conditions to Seller's Obligations - The obligations of the Seller under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by the Seller of each of the following conditions precedent: (i) Delivery by Buyer of all instruments and funds provided for in this Agreement necessary to the Closing. 1.7 Escrow Provisions. (a) Escrow Instructions. This Agreement, when signed by Buyer and Seller, shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, Buyer and, Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are consistent with and do not conflict with the provisions of this Agreement. In the event of any such conflict, the provisions of this Agreement shall prevail. 4 wheeler/agree/master/03/08/99 SAMPLE (b) General Escrow Provisions. Upon Close of Escrow, Escrow Holder shall deliver the Title Policy to Buyer and instruct the County Recorder of Orange County, California to mail the recorded Grant Deed, to Buyer at the address set forth in Section 3.2 after recordation. All funds received in this Escrow shall be deposited in one or more general escrow accounts of the Escrow Holder with any bank doing business in Orange County, California, and may be disbursed to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. 1.8 Amendments and Counterparts. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if all of the parties' signatures were on one document. 1.9 Payment of Costs. Buyer shall pay Buyer's and Seller's Escrow fees, any premium charges for the Title Policy, the charge for drawing the Grant Deed, and the charges for recording the Grant Deed. Clearing of all existing encumbrances,judgments, or liens, including any fees or charges incurred, shall be the sole responsibility of Seller but only to the extent of $200.00. 1.10 Termination and Cancellation of Escrow. If Escrow fails to close as provided above, any party who then shall have fully complied with their instructions and met their conditions to Close of Escrow may, in writing, demand of Escrow Holder the return of their money, documents, instruments, or property deposited into escrow. If no party has so complied, no demand for return of any money, documents, instruments, or property will be recognized by Escrow Holder until five (5)business days after Escrow Holder has mailed written notice of such demand to all other parties at their respective addresses shown in these instructions, and if any party raises any objection to such return, Escrow Holder is authorized to hold all such money, documents, instruments, or property until instructed by a court of competent jurisdiction or joint instruction of the parties. 1.11 Brokerage Commissions. Seller represents to Buyer that no third party is owed any payment or commissions as a result of the transfer of the property interests provided hereunder, and Seller indemnities and holds the Buyer harmless from and against all liabilities, costs, damages and expenses, including, without limitation, attorneys' fees, resulting from any claims of fees or commissions. 1.12 Hazardous Substances Disclosure. The Property, and Seller's undivided interest therein, are subject to a disclosure as designated under Section 25359.7 of the California Health & Safety Code (as may be amended); whereby a Seller is required to disclose the presence of any hazardous substances that have come to be located on or beneath the property before Close of Escrow. It is understood and agreed between Buyer and Seller that closing of this escrow is subject to and contingent upon receipt and approval of said Disclosure Statement by Buyer, and 5 wheeler/agree/master/03/08/99 SAMPLE that Buyer may, in its sole discretion, cancel this escrow as a result of the information provided in said Disclosure Statement, or as a result of subsequent information provided by Seller to Buyer concerning Contamination on the Property, without any further liability of Buyer to Seller. Review and approval of the Disclosure Statement shall not be unreasonably withheld or delayed by Buyer. 1.13 Contamination Defined. The term "Contamination" as used in this Agreement shall mean and refer to any environmental contamination of any type or nature including but not limited to the following substances, whether in the soil, air, surface water, perched water or groundwater, or in any other medium: any "hazardous substance„ as defined under Title 42 U.S.C. Section 9601 (14) or under California Health & Safety Code Section 25281 (g); any "hazardous waste, as defined under Title 42 U.S.C. Section 6903(5) and under California Health & Safety Code Section 25117; any "hazardous substance„ as defined under California Health & Safety Code Sections 25281 and 25316; any "hazardous material" as defined under California Health & Safety Code Section 25260 (e) ; any chemical listed pursuant to California Health & Safety Code Section 25249.8; any petroleum hydrocarbon material or petroleum byproduct, refined and unrefined, including but not limited to any crude oil or any fraction thereof, and any additive to any refined petroleum product, as well as any asbestos or asbestos containing material. 1.14 Buyer Reservation of Rights. Buyer expressly reserves all rights and remedies under the law against Seller and any prior owner, operator or other responsible party to seek damages, injunctive relief or other remedies in connection with any investigation, remediation, or other obligations Buyer incurs or may incur as a result of Contamination (other than the levels of contamination currently known by Buyer to exist on or in the Property) potentially existing on, in, or under the Property, including but not limited to any action under CERCLA (42 U.S.C. §§ 960.1, et seq.), RCRA (42 U.S.C. §§ 6901 et seq.), the California Hazardous Substance Account Act (California Health & Safety Code §§ 25300 et seq.) , the Hazardous Waste Control Law (California Health & Safety Code 25100, et seq.), the Porter Cologne Act (California Water Code 13000, et seq.) , California Health & Safety Code §§ 25280, et seq. and 33459 et seq., California Civil Code §850 et seq., California Civil Code §§ 3479 and 3480 et seq. and other common laws of the State. 1.15 Disclosure of Test Results on Contamination to Buyer. Seller shall disclose any and all lab results, test results and any and all other information concerning the assessment, investigation, monitoring, removal and/or remediation of Contamination on or from the Property to Buyer, in writing, within two (2) days of his or her receipt of such information. The disclosure of this information is in accordance with and a part of the disclosure obligations of said Seller under the above Section 1.12, the Hazardous Substances Disclosure obligation. 6 wheeler/agree/master/03/08/99 SAMPLE 1.16 Buyer's Written Purchase Offer. To the extent not inconsistent herewith, the terms of Buyer's written purchase offer to Seller, dated October 26, 1998, are incorporated herein by reference into this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1 Repayment of Purchase Price Deposit to Buyer. In the event Escrow does not close, for whatever reason, and Buyer does not acquire Seller's undivided interest in the Property as provided for in this Agreement, any and all amounts deposited into Escrow as the Purchase Price by Buyer and all other amounts deposited into Escrow by Buyer shall be returned by Escrow Holder, less costs incurred by Escrow Holder, to Buyer. 2.2 Possession. Possession of the Property shall be delivered to Buyer at of Close of Escrow. Pending Close of Escrow, Seller grants to Buyer and Buyer's Contractor a right of entry on the Property, for the purposes of coming onto such Property and effectuating the construction of the public right of way improvements, utilities, and other improvements contemplated thereon as part of Buyer's implementation of its public roadway improvement project. ARTICLE III MISCELLANEOUS 3.1 Attorney's Fees. In any action between the parties hereto, seeking enforcement of any of the terms and provisions of this Agreement or the Escrow, or in connection with the Property, the prevailing party in such action shall be entitled to and recover from the other party, its reasonable attorney's fees and other reasonable expenses in connection with such action or proceeding, in addition to its recoverable court costs. 3.2 Notices. Any notice which either party may desire to give to the other party or to the Escrow Holder must be in writing and may be given by personal delivery or by mailing the same by registered or certified mail, return receipt requested, postage prepaid, to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to'such other persons as the parties may hereafter designate: To Buyer: Robert J. Wheeler, Special Counsel, Office of City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 7 wheeler/agree/master/03/08/99 SAMPLE Copy to: Mr. Bill Holman PLC Land Company 23 Corporate Plaza, Suite 250 Newport Beach, California 92660 To Seller: Mr. Robert B. Lindley P. O. Box 2167 Oakhurst, CA 93644 To Escrow Holder First American Title Insurance Company 114 East Fifth Street (P.O. Box 267) Santa Ana, CA 92702 Attention: Escrow Officer Any notice given by mail shall be deemed received forty-eight (48)hours after such notice is deposited in the United States mail, addressed as provided above, with postage fully prepaid. 3.3 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared equally by all parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in-effect at the time of the execution of this Agreement. Any action brought in connection with this Agreement shall be brought in a court of competent jurisdiction located in Orange County, California. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 3.4 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 3.5 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 8 wheeler/agree/master/03/08/99 SAMPLE 3.6 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 3.7 Merger of Prior Agreements and Understandings. This Agreement and other documents incorporated herein by reference contain the entire understanding between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 3.8 Covenants to Survive Escrow. The covenants and agreements contained herein shall survive the Close of Escrow shall be binding upon and inure to the benefit of the parties hereto and their representatives,heirs, successors and assigns. 3.9 I.R.S. Form "W-9". It is further understood and agreed by Seller that closing of this escrow is subject to and contingent upon Seller executing an Internal Revenue Service Form W-911 and 1099-S Form, and depositing same with Escrow Holder no later than one (1) day prior to the Close of Escrow. 3.10 Notice of Tax Withholding Requirements. It is further understood and agreed by Buyer and Seller that closing of this escrow is subject to and contingent upon Seller executing a "Transferor's Affidavit of Non-Foreign Status" and California Form 590 (Withholding Exemption Certificate) and depositing a copy of same with Escrow Holder no later than one (1) day prior to the Close of Escrow. In the event Sellers cannot execute the above-referenced Transferor's Affidavit or California Form 590, Seller shall provide written instructions to Buyer. REST OF PAGE NOT USED 9 wheeleri agree/master/03/08/99 SAMPLE 3.11 Counterparts. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if the signatures of all of the parties were on one document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase and Sale of Real Property and Escrow Instructions as of the date first above written. "SELLER" Dated: "BUYER" CITY OF HUNTINGTON BEACH, Dated: By: By: APPROVED AS TO FORM: Robert J. Wheeler, Special Counsel Office of City Attorney City of Huntington Beach 10 wheel er/agree/master/03/08/99 SAMPLE REQUEST FOR LATE SUBMITTAL (To accompany RCA's submitted after Deadline Department: CITY Subject Real Estate Purchase Agreements for ATTORNEY'S OFFICE Unimproved Real Property Council Meeting Date: 3/15/99 Date of This Request: 5/8/99 REASON (Why is this RCA being submitted late?): Special Counsel Robert Wheeler did not know if this matter needed to be brought before the City Council for approval. EXPLANATION (Why is this RCA necessary to this agenda?): The real estate agreements and authorization to open escrow for the acquisition of unimproved real property is part of the Holly-Sea Cliff Project. The next council meeting is April 19, 1999 when this matter can be heard next. It is too long of a period to obtain authorization too en escrow on this matter. CONSEQUENCES How shall.delay of this RCA adversely impact the City?): The City has signed real estate purchase agreements with nine individuals who are waiting to be paid for their undivided interests in this parcel. Acquisition of this parcel is part of the Holly-Seacliff Project and construction of the extension of Gothard Street would be delayed. pp , Signature: 2Approved O Denied Department Head Ray Silver City Administrator Documents 07/14/94 Tz) -Prtn RCA R-OUTING ,SKEET INITIATING DEPARTMENT: CITY ATTORNEY SUBJECT: Unimproved Real Property Located at Corner of Clay Avenue and Main Street APN 111-150-25 COUNCIL MEETING DATE: March 15, 1999 RCA ATTACHMENTS - STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) Signed in full by the City Attorney) Not Attached (Explain) Subleases, Third Party Agreements, etc. LApproved as to form by City Attorney) Not Applicable Certificates of Insurance Approved by the City Attorney) Not Applicable Financial Impact Statement Unbud et, over $5,000 Not Applicable Bonds if applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS Sample Agreement for purchase and sale of real property and escrow instructions is provided for informational purposes only. REVIEWED RETURNED FOR RDED Administrative Staff Assistant City Administrator Initial City Administrator Initial Rev City Clerk EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use RCA Author: