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Council/Agency Meeting Held: /1 l6 _A00
Deferred/Continued to:
AAp oved ❑ Conditionally Approved ❑ Denied Iv_,4,1 C er Sign e
Council Meeting Date: 11/16/2009 Department ID Number: ED 09-65
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY C CIL MEMBERS
SUBMITTED BY: FRED A. WILSON, CITY ADMINIS R
PREPARED BY: TRAVIS K. HOPKINS, PE, DIRECTOR OF Puen Ow
STANLEY SMALEWITZ, DIRECTOR OF ECONOMIC DEVELOPMENT
SUBJECT: DECLARATION AND DISPOSITION OF CITY OWNED SURPLUS
PROPERTY LOCATED NEAR THE INTERSECTION OF GOTHARD
STREET AND MAIN STREET
1Etem:e:,t:o:f Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue: Adopt a resolution declaring the City owned property (as described in
Exhibit A and B of the Resolution) surplus and approve the sale of the property to the
adjacent property owner, Joe Gergen, for the amount of$22,000.
Funding Source: Not applicable. Buyer, Joe Gergen, shall pay all recording fees,
documentary transfer taxes, escrow fees, policies of title insurance, and any other costs
connected with the closing of this transaction.
Recommended Action: Motion to: \
1. Adopt Resolution No. 2009-71 "A Resolution of the City Council of the City of
Huntington Beach Declaring the Disposition of Certain Surplus Property".
2. Approve the "Agreement For Sale of Surplus Real Property and Escrow Instructions" for
the sale of surplus property to buyer, Joe Gergen.
3. Authorize the Mayor and City Clerk to execute the "Agreement for Sale of Surplus Real
Property and Escrow Instructions" and all other related documents to convey ownership
of the surplus property.
4. Authorize the Director of Economic Development to execute any other related escrow
documents.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 11/16/2009 DEPARTMENT ID NUMBER: ED 09-65
Alternative Action(s):
1. Do not adopt Resolution No. 2009-71
2. Do not approve the "Agreement for Sale of Surplus Real Property and Escrow
Instructions."
Analysis: As a result of the Gothard Street widening and realignment, completed in 2001,
the City currently owns a small, 2,073 square foot remnant parcel at the east end of Clay
Avenue. The parcel is not developable independently. However, the parcel has plottage
value to the adjacent property owner, Joe Gergen. Mr. Gergen has offered to purchase the
City owned property for $22,000 which is the fair market value per the appraisal report. Mr.
Gergen plans to join this remnant parcel to his existing vacant property to make a larger
more developable property.
Public Works and Economic Development/Real Estate Services staff has confirmed with
other City Departments that they do not have any use or need for the property. Pursuant to
Government Code 54221, this land is exempt from any surplus land requirements; therefore
it was not necessary to notify other public agencies.
General Plan Conformance No. 09-003 allows for the reversion/sale of this property to the
adjacent owners. Additionally, Chapter 3.06 of the Huntington Beach Municipal Code allows
the Council to determine that disposition of surplus real property to the adjacent owners is in
the public's interest.
Staff recommends that the City Council adopt a resolution declaring the property surplus and
also approve the sale to the adjacent property owner, Joe Gergen, for the appraised value of
$22,000.
Strategic Plan Goal: Maintain, improve and obtain funding for public improvements.
Environmental Status: N/A
Attachment(s):
1. Resolution No.2009-71 A Resolution of the City Council of the City of
Huntington Beach Declaring the Disposition of Certain Surplus
Pro pert .
2. A reement for Sale of Surplus Real Property and Escrow Instructions.
3. Aerial site map.
-2- 11/3/2009 8:03 AM
ATTACHMENT # 1
RESOLUTION NO. 2009_71
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH DECLARING THE
DISPOSITION OF CERTAIN SURPLUS PROPERTY
WHEREAS, the City of Huntington Beach is the owner of certain real property near
the intersection of Gothard Street and Main Street(the"Parcel"), as more particularly set forth
in the legal description and sketch attached hereto as Exhibits"A" and `B," respectively; and
The City acquired the parcel as follows:
By Grant Deed from the Clerk of the U. S. Bankruptcy Court dated January 10, 2003,
and recorded on January 21, 2003 as Instrument no. 2003800075401 of Official
Records, County of Orange, California; and
The City Administrator has recommended to this Council the Parcel be declared
Surplus Real Property pursuant to Chapter 3.06 of the Huntington Beach Municipal Code
which authorizes the City to dispose of Surplus Property, and sets out the procedures
therefore,
NOW, THEREFORE, the City Council of the City of Huntington Beach does find,
determine and resolve as follows:
I. That the Parcel as described above is surplus and the public interest and
necessity require the disposition thereof; and
2. The Parcel has been appraised to establish the fair market value; and
3. The costs incurred in preparing the Parcel for sale including all related
expenses and appraisal fees have been added to and made a part of the value to be paid on the
sale of the Parcel; and
4. The Parcel is to be sold for cash to the adjacent property owner for the amount
of$22,000.00, as described in the Agreement for Acquisition and Escrow Instructions to be
approved concurrently herewith; and
5. The City Administrator is hereby authorized and directed to execute all
documents and take all steps necessary to dispose of such Surplus Property, pursuant to the
determinations of this Council and the procedures set forth in Chapter 3.06 of the Huntington
Beach Municipal Code.
07-962.002/35345.doc 1
Resolution No. 2009-71
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 16th day of November , 200 9 .
%-& /S rL
Mayor
REVIE APPROVED: INITIATED AND APPROVED:
City Ad ini trator Director of Economic evelopment
APPROVED AS TO FORM:
C ty Att rney
07-962.002/35345.doc 2
Resolution No. 2009-71
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF LOT 22, BLOCK "B" OF THE GARFIELD ADDITION TO HUNTINGTON BEACH, IN THE
CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 7, PAGES 27 AND 28 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY MORE DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 22; THENCE ALONG THE WESTERLY LINE OF SAID
OF SAID LOT 22 N19'18'29"E 74.37 FEET TO THE SOUTHEASTERLY CORNER OF THE "FINAL ORDER
OF CONDEMNATION", RECORDED AUGUST 13, 1999 AS INSTRUMENT NO. 99-592245 OF OFFICIAL
RECORDS, SAID CORNER IS ALSO ON A NONTANGENT CURVE CONCAVE TO NORTHEAST HAVING A
RADIUS OF 370.00 FEET, A RADIAL LINE THROUGH SAID CORNER BEARS S39'41'05"W; THENCE
SOUTHEASTERLY ALONG SAID CURVE 56.08 FEET THROUGH A CENTRAL ANGLE OF 8'41'00" TO A POINT,
A RADIAL BEARING THROUGH SAID POINT BEARS S31'41'05"W; THENCE S31'23'28"W 7.11 FEET
TO A POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 42.00 FEET,
A RADIAL BEARING THROUGH SAID POINT BEARS N2'09'33"E; THENCE SOUTHWESTERLY ALONG SAID
CURVE 39.85 FEET THOUGH A CENTRAL ANGLE OF 54'21'56" TO A POINT OF REVERSE CURVATURE
WITH A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 40.00 FEET; THENCE SOUTHWESTERLY
ALONG SAID CURVE 36.85 FEET THROUGH A CENTRAL ANGLE OF 52'30'O8" TO THE POINT OF BEGINNING.
CONTAINING AN AREA OF 2073 SQUARE FEET, MORE OR LESS.
AS SHOWN ON EXIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF.
PREPARED BY:
TETRA TECH, INC.
16241 LAGUNA CANYON ROAD, STE. 200
IRVINE, CA. 92618
(949) 727-7099
CD
JOSEPH HARTG R.C.E 29242
Resolution No. 2009-71
EXHIBIT "B"
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PREPARED BY: FES
TETRA TECH, INC.
16241 LAGUNA CANYON ROAD, STE. 200 ��` y�PK � Fy
IRVINE, CA. 92618
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TABLE OF DIMENSIONS
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3O— S31'23'28"W 7.11'
54'21'56" R=42' L=39.85
52'30'08" R=40' L=36.65'
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Res. No. 2009-71
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing resolution was passed and adopted
by the affirmative vote of at least a majority of all the members of said City Council
at a regular meeting thereof held on November 16, 2009 by the following vote:
AYES: Carchio, Dwyer, Green, Bohr, Coerper, Hardy, Hansen
NOES: None
ABSENT: None
ABSTAIN: None
i Clerk and ex-offici4lClerk of the
City Council of the City of
Huntington Beach, California
ATTACHMENT #2
AGREEMENT FOR SALE OF SURPLUS REAL
PROPERTY AND ESCROW INSTRUCTIONS
This Sales Agreement ("Agreement") is made and entered into on this day of
D{�CI�7,d , 20 D,, by and between the City of Huntington Beach, a
California municipal corporation, ("City") and Joe Gergen ("Buyer") collectively the "Parties."
WHEREAS, the City owns that certain real property located in the City of Huntington
Beach, Orange County, California, which pursuant to Huntington Beach Municipal Code
Chapter 3.06 has been determined to be surplus real property and available for disposal; and
The City Council authorized the disposal of the surplus real property on
20Qq.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and
valuable consideration, the Parties agree as follows:
1. PROPERTY
1.1 Property. City agrees to sell and convey to Buyer, and Buyer agrees to
purchase from City, the real property (Property), hereinafter described, subject to the terms and
conditions set forth in this Agreement The real property that is the subject of this offer consists
of approximately 2073 square feet located in the City of Huntington Beach, County of Orange,
State of California and legally described in the attached Exhibits "A" and "B."
2. PURCHASE PRICE
2.1 Purchase Price. The total purchase price to be paid by Buyer to City for
Property shall be Twenty-Two Thousand Dollars ($22,000.00).
2.2 Payment of the Purchase Price. The Purchase Price for the Property
shall be payable by Buyer as follows: Upon the Close of Escrow, Buyer shall deposit or cause to
be deposited with Escrow Holder, in cash or by a certified or bank cashier's check made payable
to Escrow Holder or a confirmed wire transfer of funds, the Purchase Price plus Escrow Holder's
estimate of Buyer's closing costs, prorations and charges payable pursuant to this Agreement.
All escrow, recording and title insurance costs to be paid by Buyer.
3. CONDITIONS OF SALE
3.1 Buyer's Costs. Buyer shall pay all recording fees, documentary transfer
taxes, escrow fees, policies of title insurance, and any other costs connected with the closing of
this transaction.
3.2 Further Documents and Assurances. Buyer and City shall each,
diligently and in good faith, undertake all actions and procedures reasonably required to place
the escrow in condition for closing as and when required by this Agreement. Buyer and City
agree to execute and deliver all further documents and instruments reasonably required by the
07-962.002/35499.doe Page 1 of l l
escrow holder or Title Company. City shall deliver or cause to be delivered to escrow holder in
time for delivery to Buyer at the closing an original ink signed Grant Deed, duly executed and in
recordable form, conveying fee title to the Property to Buyer.
3.3 Opening of Escrow. For purposes of this Agreement, the Escrow shall be
deemed opened on the date Escrow Holder shall have received an executed counterpart of this
Agreement from both Buyer and City ("Opening Date"). Escrow Holder shall notify Buyer and
City, in writing, of the date Escrow is opened and the Closing Date, as defined in Paragraph 3.4,
below. In addition, Buyer and City agree to execute, deliver, and be bound by any reasonable or
customary supplemental escrow instructions of Escrow Holder, or other instruments as may
reasonably be required by Escrow Holder, in order to consummate the transaction contemplated
by this Agreement. Any such supplemental instructions shall not conflict with, amend, or
supersede any portion of this Agreement. If there is any inconsistency between such
supplemental instructions and this Agreement, this Agreement shall control.
3.4. Close of Escrow. For purposes of this Agreement, "Close of Escrow"
shall be defined as the date that the Grant Deed, conveying the Property to Buyer, is recorded in
the Official Records of Orange County, California. This Escrow shall close within sixty (60)
days of the Opening Date ("Closing Date").
3.5. Conditions of Title. It shall be a condition to the Close of Escrow and a
covenant of City that title to the Property shall be conveyed to Buyer by City by the Grant Deed,
subject only to the following Approved Conditions of Title ("Approved Condition of Title"):
3.5.1. Matters affecting the Approved Condition of Title created by or
with the written consent of Buyer.
3.5.2. Exceptions which are disclosed by the Report described in
Paragraph 3.7.1 hereof and which are approved or deemed approved by Buyer in
accordance with Paragraph 3.7.1 hereof.
City covenants and agrees that during the term of this Escrow, City will not cause
or permit title to the Property to differ from the Approved Condition of Title described in this
Paragraph. Any liens, encumbrances, easements, restrictions, conditions, covenants, rights,
rights-of-way, or other matters affecting the Approved Condition of Title which may appear of
record or be revealed after the date of the Report described in Paragraph 3.7.1 below, shall also
be subject to Buyer's approval and must be eliminated or ameliorated to Buyer's satisfaction by
City prior to the Close of Escrow as a condition to the Close of Escrow for Buyer's benefit.
3.6. Title Policy. Title shall be evidenced by the willingness of the Title
Company to issue its CLTA Standard Form Policy or Binder of Title Insurance ("Title Policy")
in the amount of the Purchase Price showing title to the Property vested in Buyer subject only to
the Approved Condition of Title.
3.7. Conditions to Close of Escrow.
3.7.1. Conditions to Buyer's Obligations. The Close of Escrow and
Buyer's obligation to consummate the transaction contemplated by this Agreement are
07-962.002/35499.doc Page 2 of 11
subject to the satisfaction of the following conditions for Buyer's benefit on or prior to the
dates designated below for the satisfaction of such conditions:
(a) Preliminary 'Title Report and Exceptions. Immediately after
escrow is opened as provided herein, Buyer agrees to cause Stewart Title
Company to issue a Preliminary Title Report relating to the Property.
Within fifteen (15) days after escrow has been opened, the Buyer will
cause Stewart Title CompanX to issue an Amendment to Escrow
Instructions, which indicates those title exceptions that the Buyer will
accept. City will have ten (10) days after receipt of such amendment to
review and approve it. In the event of non-approval, escrow will fail and
each party will instruct Stewart Title Company to cancel the escrow.
(b) Representations, Warranties, and Covenants of City. City shall
have duly performed each and every agreement to be performed by City
hereunder and City's representations, warranties, and covenants set forth in
Paragraph 4 shall be true and correct as of the Closing Date.
(c) No Material Changes. At the Closing Date, there shall have been
no material adverse changes in the physical or financial condition of the
Property.
(d) Inspections and Studies. On or before thirty (30) days after
Opening Date ("Due Diligence Period"), Buyer shall have approved the
results of any and all inspections, investigations, tests and studies
(including, without limitation, investigations with regard to governmental
regulations, engineering tests, soil and structure investigation and analysis,
seismic and geologic reports) with respect to the Property (including all
structural and mechanical systems and leased areas) as Buyer may elect to
make or obtain. The failure of Buyer to disapprove said results on or prior
to the expiration of the Due Diligence Period shall be deemed to constitute
Buyer's approval of the results. The cost of any such inspections, tests and
studies shall be borne by Buyer. During the term of this Escrow, Buyer,
its agents, contractors and subcontractors shall have the right to enter upon
the Property, at reasonable times during ordinary business hours, to make
any and all inspections and tests as may be necessary or desirable in
Buyer's sole judgment and discretion. Buyer shall use care and
consideration in connection with any of its inspections. Buyer shall
indemnify and hold City and the Property harmless from any and all
damage arising out of, or resulting from the negligence of Buyer, its
agents, contractors and/or subcontractors in connection with such entry
and/or activities upon the Property. Buyer will provide City, upon request,
at no cost, copies of any Buyer's investigation reports obtained by the
Buyer, if any.
(e) Council Approval. The completion of this transaction, and the
escrow created hereby, is contingent upon the specific acceptance and
approval of the City by action of the City Council.
07-962.002/35499.doe Page 3 of 11
(f) The property is sold in its present condition as of the date of
acceptance subject to the Buyer's investigation rights.
3.7.2. Conditions to City's Obligation. For the benefit of City, the
Close of Escrow shall be conditioned upon the occurrence and/or satisfaction of each of
the following conditions (or City's waiver thereof, it being agreed that City may waive
any or all of such conditions):
(a) Buyer's Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by
Buyer, and
(b) Buyer's Representations. All representations and warranties
made by Buyer to City in this Agreement shall be true and correct as of
the Close of Escrow.
3.8. Deposits by City. At least one (1) business day prior to the Close of
Escrow, City shall deposit or cause to be deposited with Escrow Holder the Grant Deed
conveying the Property to Buyer duly executed by City, acknowledged and in recordable form.
3.9. Deposits by Buyer. Buyer shall deposit, or cause to be deposited with
Escrow Holder, the funds which are to be applied toward the payment of the Purchase Price in
the amounts and at the times if designated herein (as reduced or increased by the prorations,
debits and credits hereinafter provided).
3.10. Costs and Expenses. The cost and expense of the Title Policy
attributable to CLTA coverage shall be paid by Buyer. The escrow fee of Escrow Holder shall
be paid by Buyer. Buyer shall pay all documentary transfer taxes, if any, payable in connection
with the recordation of the Grant Deed. The amount of such transfer taxes shall not be posted on
the Grant Deed, but shall be supplied by separate affidavit. Buyer shall pay the Escrow Holder's
customary charges to Buyer and City for document drafting, recording, and miscellaneous
charges. If, as a result of no fault of Buyer or City, Escrow fails to close, Buyer shall pay all of
Escrow Holder's fees and charges. Penalties for prepayment of bona fide obligations secured by
any existing Deed of trust or mortgage shall be waived pursuant to Civil Code Procedures
Section 1265.240.
3.11. Disbursements and Other Actions by Escrow Holder. Upon the Close
of Escrow, the Escrow holder shall promptly undertake all of the following in the manner
indicated:
3.11.1 Recording. Cause the Grant Deed and any other documents,
which the parties hereto may mutually direct, to be recorded in the Official Records of
Orange County, California, in the order set forth in this subparagraph. Escrow Holder is
instructed not to affix the amount of documentary transfer tax (if any) on the face of the
Deed, but to supply same by separate affidavit.
07-962.002/35499.doc Page 4 of 11
3.11.2 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.
3.11.3 Documents to Buyer. Deliver when issued, the Title Policy to
Buyer.
3.11.4 Pay demands of existing lienholders. Escrow Holder is hereby
authorized and instructed to cause the reconveyance, or partial reconveyance, as the case
may be, of any such monetary exceptions to Buyer's title to the Property at or prior to the
Close of Escrow.
4. CITY'S REPRESENTATIONS, WARRANTIES, AND DISCLOSURES. In
addition to any express agreements of City contained herein, the following constitute
representations and warranties of City to Buyer, of this Agreement:
4.1 Reliability of Information. City obtained the information contained in
this Agreement from sources deemed reliable; however, City makes no guarantees as to the
accuracy of the information provided.
4.2 Authority of State. City is a government entity, duly organized and
validly existing under the laws of the State of California. City has full power and authority to
own, sell, and convey the Property to Buyer and to enter into and perform its obligations
pursuant to this Agreement.
4.3 Taxes. City is exempt from property taxes and assessments and none are
or will be owing at close of escrow.
4.4 Disclosures. Buyer acknowledges that Buyer is purchasing the Property
solely in reliance on Buyer's own investigations. No representations or warranties of any kind
whatsoever, expressed or implied, have been made by City, City's agents, or employees,
including in any investigations, studies or documents identified under Section 4.6 below. Buyer
further acknowledges and warrants that as of the close of escrow Buyer will be aware of all
zoning regulations, other governmental requirements, site and physical conditions (including the
presence of hazardous materials or other adverse environmental conditions), and other matters
affecting the use and condition of the Property including any investigations, studies, and
documents identified in section 4.6. Buyer agrees to purchase the Property in the condition that it
is in at close of escrow, subject, however, to Buyer's right to terminate should the Property be
damaged or destroyed by causes other than causes attributable to Buyer's entry on the Property
and inspections ordered by Buyer prior to close of escrow. Buyer shall be responsible at Buyer's
sole expense for any or all remediation required to make Property usable for Buyer's intended
purpose.
4.5 As-Is Purchase. Except as provided in paragraph 4.4, Buyer specifically
acknowledges and agrees that City will sell and Buyer will purchase the Property on an "as-is
with all faults" basis, and that having been given the opportunity to inspect the Property and
review information and documentation affecting the Property, Buyer is not relying on any
representations or warranties of any kind whatsoever, express or implied, from City or its agents
as to any matters concerning the Property, including without limitation: (i.) the quality, nature,
adequacy, and physical condition of the Property including soils, geology, and any groundwater;
07-962.002/35499.doc Page 5 of 11
(ii.) the existence, quality, nature, adequacy, and physical condition of utilities serving the
Property; (iii.) the development potential of the Property and the Property's use, merchantability,
fitness, suitability, value, or adequacy of the Property for any particular purpose; (iv.) the zoning
or other legal status of the Property or any other public or private restrictions on use of the
Property; (v.) the compliance of the Property or its operation with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions, and restrictions of any governmental or
quasi-governmental entity or of any other person or entity; (vi.) the presence of hazardous
materials on, under, or about the Property or the adjoining or neighboring property; (vii.) the
condition of title to the Property; and (viii.)the economics of the operation of the Property.
4.6 Existing Investigations, Studies, and Documents. Buyer has knowledge
of the following investigations, studies, and documents as provided by City in connection with
his/her decision to purchase the Property. These reports and documents relating to the Property
disclosed by City are true and correct originals or copies thereof. City makes no representations
or warranties nor expresses or implies any opinion concerning their accuracy.
1.
2.
3.
4.7 Absence of Fraud and Misleading Statements. To the best of City's
knowledge, no statement of City in this Agreement or in any document, certificate, or schedule
furnished or to be furnished to Buyer pursuant hereto or in connection with the transaction
contemplated hereby contains any untrue statement of material fact.
4.8 General Representation. No representation, warranty or statement of
City in this Agreement or in any document, certificate or schedule furnished or to be furnished to
Buyer pursuant hereto contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements or facts contained therein not
misleading. City's representations and warranties made in this Agreement shall be continuing
and shall be true and correct as of the date of the close of escrow with the same force and effect
as if remade by City in a separate certificate at that time. The truth and accuracy of City's
representations and warranties made herein shall constitute a condition for the benefit of Buyer
to the close of escrow (as elsewhere provided herein) and shall not merge into the close of
escrow or the recordation of the Grant Deed in the Official Records, and shall survive the close
of escrow.
5. BUYER'S REPRESENTATIONS AND WARRANTIES. In addition to any
express agreements of Buyer contained herein, the following constitute representations and
warranties of Buyer to City, of this Agreement:
5.1 Representations Regarding Buyer's Authority.
(a) Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the transactions
contemplated hereby.
(b) The individuals executing this Agreement and the instruments
referenced herein on behalf of Buyer have the legal power, right, and actual authority to bind
Buyer to the terms and conditions hereof and thereof.
07-962.002/35499.doc Page 6 of 11
(c) This Agreement is, and all other instruments, documents and
agreements required to be executed and delivered by Buyer in connection with this Agreement
are and shall be, duly authorized, executed and delivered by Buyer and shall be valid, legally
binding obligations of and enforceable against Buyer in accordance with their terms.
(d) All requisite action (corporate, trust, partnership or otherwise) has
been taken by Buyer in connection with the entering into this Agreement, the instruments
referenced herein, and the consummation of the transactions contemplated hereby. No consent of
any partner, shareholder, creditor, investor,judicial or administrative body, authority other party
is required.
(e) Neither the execution and delivery of this Agreement and
documents referenced herein, nor the incurrence of the obligations set forth herein, nor the
consummation of the transactions herein contemplated, nor compliance with the terms of this
Agreement and the documents referenced herein conflict with or result in the material breach of
any terms, conditions or provisions of, or constitute a default under, any bond, note, or other
evidence of indebtedness or any contract, indenture, mortgage, Deed of trust, loan, partnership
agreement, lease or other agreements or instruments to which Buyer is a party or affecting the
Property.
5.2 General Representation. No representation, warranty or statement of
Buyer in this Agreement or in any document, certificate or schedule furnished or to be furnished
to City pursuant hereto contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements or facts contained therein
not misleading. Buyer's representations and warranties made in this Agreement shall be
continuing and shall be true and correct as of the date of the close of escrow with the same force
and effect as if remade by Buyer in a separate certificate at that time. The truth and accuracy of
Buyer's representations and warranties made herein shall constitute a condition for the benefit of
City to the close of escrow (as elsewhere provided herein) and shall not merge into the close of
escrow or the recordation of the Grant in the Official Records, and shall survive the close of
escrow.
6. DUE DIILIGENCE.
6.1 Buyer's Investigation of Property Condition. Real property often
contains defects and conditions which are not readily apparent and which may affect the value or
desirability of the Property. Therefore, it is the affirmative duty of Buyer to exercise reasonable
care to discover those facts which are unknown to Buyer or within the diligent attention and
observation of Buyer. Buyer agrees to provide to City, at no cost, upon request of City, complete
copies of all inspection reports obtained by Buyer concerning the Property.
6.2 Buyer's Acceptance of Property Condition. Buyer's acceptance of the
condition of the Property is a contingency of this Agreement; accordingly, Buyer shall have the
right to conduct inspections, investigations, tests, surveys, and other studies at Buyer's expense.
Buyer is strongly advised to exercise these rights and select professionals with appropriate
qualifications to conduct inspections of the entire Property. If Buyer does not exercise these
rights, Buyer is acting against the advice of City.
6.3 Scope of Buyer's Investigations. Buyer agrees and warrants, or by the
failure to do so shall have waived any rights to do so hereunder, that at close of escrow Buyer
07-962.002/35499.doc Page 7 of 11
shall have investigated the condition and suitability of all aspects of the Property and all matters
affecting the value or desirability of the Property, including but not limited to the following:
6.3.1 Condition of systems and components. Foundation, plumbing,
siding, electrical, heating, mechanical, roof, air conditioning, built-in appliances, security, and
any other structural or nonstructural systems and components, and the energy efficiency of the
Property.
6.3.2 Size and age of improvements. Room count, room dimensions,
square footage in improvement, lot size, and age of the improvements.
6.3.3 ]Lines and boundaries. Property lines and boundaries.
6.3.4 Waste disposal. Type, size, adequacy, and condition of sewer and/or
septic systems and components.
6.3.5 Governmental requirements and limitations. Availability of
required governmental permits, inspections, certificates, or other determinations affecting the
Property, including historical significance. Any limitations, restrictions, zoning, building size
requirements, or other requirements effecting the current or future use or development of the
Property.
6.3.6 Rent and occupancy controls. Any restrictions that may limit the
amount of rent that can legally be charged and the maximum number of persons who can
lawfully occupy the Property.
6.3.7 Water and utilities; well systems and components. Availability,
adequacy, and condition of public or private systems.
6.3.8 Environmental hazards. The presence of asbestos, formaldehyde,
radon, methane, other gases, lead based paint, other lead contamination, fuel or chemical storage
tanks, waste disposal sites, electromagnetic fields, and other substances, materials, products, or
conditions.
6.3.9 Geologic conditions. Geologic/seismic conditions, soil
stability/suitability, and drainage.
6.3.10 Neighborhood, area, subdivision requirements. Neighborhood or
area conditions including schools; proximity and adequacy of law enforcement; proximity to
commercial, industrial, or agricultural activities; crime statistics; fire protection; other
governmental services; existing and proposed transportation; construction and development
which may affect noise, view or traffic; airport noise; and noise or odor from any source, wild or
domestic.
6.3.11 Matters of record. Covenants, conditions, and restrictions; Deed
restrictions; easements; and other title encumbrances of record.
6.3.12 Other matters. Any and all other matters such as availability of
suitable public infrastructure, assessment, other special service districts, and soil or other
conditions on the Property, not herein listed, which are or may be pertinent to Buyer's purpose
for acquiring the Property.
7. INDEMNIFICATION. Buyer shall defend, indemnify, and hold the City
harmless from and against any and all claims, liabilities, obligations, losses, damages, costs, and
expenses, including, but not limited to, attorney's fees, court costs, and litigation expenses that
City may incur or sustain by reason of or in connection with any misrepresentation made by the
Buyer pursuant to this Agreement.
07-962.002/35499.doc Page 8 of 11
8. MINERAL RESERVATIONS. City shall retain all mineral rights in the
Property, and the Grant Deed shall contain the following language:
"EXCEPTING therefrom all oil, gas and other hydrocarbon substances and
minerals lying below a depth of 500 feet from the surface of said land, but
without the right of surface entry at any time upon said land or within the top 500
feet thereof, for the purpose of exploiting, developing, producing, removing and
marketing said substances."
9. PRIOR AGREEMENTS. This Agreement, in effect as of the Date of
Agreement, supersedes any and all prior agreements (if any) between City and Buyer regarding
purchase and sale of the Property.
10. NOTICES. Any notice, tender, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered, mailed or
sent by wire or other telegraphic communication in the manner provided in this Agreement, to
the following persons:
If to City: If to Buyer:
City of Huntington Beach Joe Gergen
Attn: Real Estate Services 211-B Main Street
2000 Main Street Huntington Beach, CA 92648
Huntington Beach, CA 92647
11. CALCULATION OF TIME. Under this Agreement, when the day upon which
performance would otherwise be required or permitted is a Saturday, Sunday or holiday, then the
time for performance shall be extended to the next day which is not a Saturday, Sunday or
holiday. The term "holiday" shall mean all and only those State holidays specified in Sections
6700 and 7701 of the California Government Code.
12. TIME OF ESSENCE. Time is of the essence of this Agreement and each and
every provision hereof.
13. ENTIRE AGREEMENT. This Agreement shall constitute the entire
understanding and agreement of the Parties hereto regarding the purchase and sale of the
Property and all prior agreements, understandings, representations or negotiations are hereby
superseded, terminated and canceled in their entirety, and are of no further force or effect.
14. AMENDMENTS. This Agreement may not be modified or amended except in
writing by the Parties.
15. APPLICABLE LAW. The Parties hereto acknowledge that this Agreement has
been negotiated and entered into in the State of California. The Parties hereto expressly agree
that this Agreement shall in all respects be governed by the laws of the State of California.
16. SEVERABILITY. Nothing contained herein shall be construed as to require the
commission of any act contrary to law, and wherever there is any conflict between any provision
07-962.002/35499.doc Page 9 of 11
contained herein and any present statute, law, ordinance or regulation as to which the Parties
have no legal right to contract, the latter shall prevail, but the affected provisions of this
Agreement shall be limited only to the extent necessary to bring them within the requirements of
such law.
17. SEPARATE COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed shall be deemed to be an original. Such
counterparts shall, together, constitute and be one and the same instrument.
18. EXHIBITS. The following Exhibits are attached to this Agreement and
incorporated by reference herein:
Exhibit A. Property Description
Exhibit B: Property Sketch
19. SURVIVAL. All terms and conditions in this Agreement, which represent
continuing obligations and duties of the Parties, that have not been satisfied prior to close of
escrow shall survive close of escrow and transfer of title to Buyer and shall continue to be
binding on the respective obligated party in accordance with their terms. All representations and
warranties and statements made by the respective parties contained herein or made in writing
pursuant to this Agreement are intended to be, and shall remain, true and correct as of the close
of escrow, shall be deemed to be material, and, together with all conditions, covenants and
indemnities made by the respective parties contained herein or made in writing pursuant to this
Agreement (except as otherwise expressly limited or expanded by the terms of this Agreement),
shall survive the execution and delivery of this Agreement and the close of escrow, or, to the
extent the context requires, beyond any termination of this Agreement.
20. LEGAL FEES. In the event suit is brought by either 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.
21. ASSIGNMENT. Buyer may not assign, transfer or convey its rights or
obligations under this Agreement without the prior written consent of City, and then only if.
Buyer's assignee assumes in writing all of Buyer's obligations hereunder; provided, however,
Buyer shall in no event be released from its obligations hereunder by reason of such assignment.
22. BROKERAGE COMMISSIONS. Buyer represents to City that there has been
no broker, real estate agent, finder or similar entity engaged in connection with this Agreement
or the sale of the Property from the City to Buyer, if consummated as contemplated hereby.
Buyer agrees that should any claim be made for brokerage commissions or finder's fees by any
broker, agent, finder or similar entity, by, through or on account of any acts of Buyer or its agent,
employees or representatives, Buyer will indemnify, defend and hold City free and harmless
from and against any and all loss, liability, cost, damage and expense (including attorneys' fees
and court costs) in connection therewith. Buyer agrees to pay, at its sole cost and expense, when
due, any and all brokerage commissions incurred by Buyer heretofore or hereafter incurred prior
to close of escrow.
07-962.002/35499.doc Page 10 of 11
23. MISCELLANEOUS.
23.1. Captions. Any captions to, or headings of, the paragraphs or
subparagraphs of this Agreement are solely for the convenience of the parties hereto, are not a
part of this Agreement, and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
23.2. No Obligations to Third Parties. Except as otherwise expressly
provided herein, the execution and delivery of this Agreement shall not be deemed to confer any
rights upon, nor obligate any of the parties hereto, to any person or entity other than the parties
hereto.
23.3. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference.
23.4. Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
23.5. Fees and Other Expenses. Except as otherwise provided herein, each of
the parties shall pay its own fees and expenses in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their authorized offices the day, month and year first above written.
BUYER CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
California
Joe geA an in4j
idual
REVIE APPROVED: Mayor
it ministrator 4-
City Cler
INIT TED AND APPROVED:
Director of conomic Development
,APPROVED AS TO FORM:
r geity Attorney
07-462.002f35499.doc Page 11 of 11
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF LOT 22, BLOCK "B" OF THE GARFIELD ADDITION TO HUNTINGTON BEACH, IN THE
CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 7, PAGES 27 AND 28 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY MORE DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 22; THENCE ALONG THE WESTERLY LINE OF SAID
OF SAID LOT 22 N19'18'29"E 74.37 FEET TO THE SOUTHEASTERLY CORNER OF THE "FINAL ORDER
OF CONDEMNATION", RECORDED AUGUST 13, 1999 AS INSTRUMENT NO. 99-592245 OF OFFICIAL
RECORDS, SAID CORNER IS ALSO ON A NONTANGENT CURVE CONCAVE TO NORTHEAST HAVING A
RADIUS OF 370.00 FEET, A RADIAL LINE THROUGH SAID CORNER BEARS S39'41'05"W; THENCE
SOUTHEASTERLY ALONG SAID CURVE 56.08 FEET THROUGH A CENTRAL ANGLE OF 8'41'00" TO A POINT,
A RADIAL BEARING THROUGH SAID POINT BEARS S31'41'05"W; THENCE S31'23'28"W 7.11 FEET
TO A POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 42.00 FEET,
A RADIAL BEARING THROUGH SAID POINT BEARS N2'09'33"E; THENCE SOUTHWESTERLY ALONG SAID
CURVE 39.85 FEET THOUGH A CENTRAL ANGLE OF 54'21'56" TO A POINT OF REVERSE CURVATURE
WITH A CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 40.00 FEET; THENCE SOUTHWESTERLY
ALONG SAID CURVE 35.85 FEET THROUGH A CENTRAL ANGLE OF 52'30'08" TO THE POINT OF BEGINNING.
CONTAINING AN AREA OF 2073 SQUARE FEET, MORE OR LESS.
AS SHOWN ON EXIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF.
PREPARED BY:
TETRA TECH, INC.
16241 LAGUNA CANYON ROAD, STE. 200
�,.
IRVINE, CA_ 92618 � H,�.'
_ \94`", 727-7099 �c �V �' >\
1 }
JOSEPH HARTG R.C.E 29242 4!
EXP. 3-3t -a
EXHIBIT " a
-f--GARFIELE--) AVE.
i
� PREPARED BY:
TETRA TECH, INC.
16241 LAGUNA CANYON ROAD, STE. 200 ?VA c�
IRVINE, CA. 92618
I (949) 727-7099
m
29242
\ RENEW-5•)1- "
a \�
I ` r JOSEPH HAR GE R.0 9242 Q
` CIVIL
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TABLE OF DIMENSIONS
\— N 19'18'29"E 74.37'
A = 8'41'00" R=370' L=56.08'
�0
3\— S31'23'28"W 7.11'
54'21'56" R=42' L=39.85
52'30'08" R=40' L=36.65'
\ 1
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80'
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ATTAC H M E N T #3
CITY REMNANT SITE
GOTHARDA- ND CLAY
HUNTINGTON BEACH, CALIFORNIA
142
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RCA ROUTING SHEET
INITIATING DEPARTMENT: Economic Development Department
SUBJECT: Disposition of Surplus City Owned Property near the
intersection of Gothard and Main Street to Joe Ger en
COUNCIL MEETING DATE: November 16, 2009
RCA ATTACHMENTS .' STATUS.
Ordinance (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable) Attached
Not Applicable ❑
Tract Map, Location Map and/or other Exhibits Attached
Not A plicable ❑
Contract/Agreement (w/exhibits if applicable) Attached
(Signed in full by the City Attorney) Not Applicable ❑
Subleases, Third Party Agreements, etc. Attached ❑
(Approved as to form by City Attorney) Not Applicable
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not Applicable
Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑
Not Applicable
Bonds (If applicable) Attached ❑
Not Applicable
Staff Report (If applicable) Attached ❑
Not Applicable
Commission, Board or Committee Report (If applicable) Attached ❑
Not Applicable
Findings/Conditions for Approval and/or Denial Attached El
Not Applicable
EXPLAMAT�OH FOR Mv WHO ATTACHMENTS
p.
REVIEWED RE. U NED FOR , RDED
Administrative Staff
Deputy City Administrator (Initial) PCV - Z LUM ! ( ) ( )
City Administrator Initial cTlYOF- ;�,;;.T[\",-;ti�IBEALiI ( ) )
City Clerk
EXPLANATION.FOR RETURN OF TEM:
a •
RCA Author: Mike Green/Tina Krause ext. 1529