HomeMy WebLinkAboutRichard C. Bemis - 2024-07-10 AMENDMENT TO AGREEMENT FOR ACQUISITION
AND ESCROW INSTRUCTIONS
This AMENDMENT TO AGREEMENT FOR ACQUISITION AND ESCROW
INSTRUCTIONS ("Amendment") is made and entered into as of this 91 day of
wiper 2024, by and between Richard C. Bemis ("Seller") and the CITY OF HUNTINGTON
BEACH, a California municipal corporation("Buyer").
WHEREAS, Seller and Buyer are parties to that certain agreement dated
jd k , 2024, entitled"Agreement for Acquisition and Escrow Instructions,"
which agreement shall hereinafter be referred to as the"Original Agreement," and
The Original Agreement provides for the purchase of that certain real property described
in Exhibit"A" attached thereto, bearing Orange County Assessor's Parcel Numbers 110-152-23
and 110-182-11 ("Property"); and
Seller and Buyer wish to amend the Original Agreement to allow for an extension of time
to perform all actions necessary to conclude the transaction and close escrow on the property,
NOW, THEREFORE, it is agreed by Seller and Buyer as follows:
1. EXTENSION OF TIME
Section 5b of the Original Agreement, entitled"Close of Escrow," is hereby amended to
read as follows:
b. Close of Escrow. For purposes of this Agreement, "Close of Escrow"
shall be defined as the date that the Grant Deed, conveying the Property to Buyer,
is recorded in the Official Records of Orange County, California. This Escrow
shall close within three hundred (300) days of the Opening Date ("Closing
Date").
2. REAFFIRMATION
Except as specifically modified herein, all other terms and conditions of the
Original Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their authorized officers on _ e wl r " , 2024.
DATED: 09 /&c 12-f-1 Seller:
Richard C. Bemis by Davi , is
attorney in fact
1
24-14192/350097
DATED: 7/7/261Zii Buyer:
CITY OF HUNTINGTON BEACH
A California municipal corporation
V
444
By: D' e or of Community Development
APPROVED AS TO FORM:
jy City Attorney
Receive and File
42040t,
City Clerk
2
24-14192/350097
EXHIBIT A
LEGAL DESCRIPTION
(APN 110-152-23 and 110-182-11)
That certain real property in the City of Huntington Beach, County of Orange, State of
California, described as follows:
Parcel 1: Lot 36, in Tract 32, as per map thereof recorded in Book 9, Page
31 of Miscellaneous Maps, Records of Orange County, California.
Parcel 2: Lot 11, in Tract 45, as per map thereof recorded in Book 9, Page
34, of Miscellaneous Maps, Records of Orange County, California
•
•
•
•
24-14192/338909
,1TINGT 2000 Main Street,
s ,�P�
11 •a-9�../i' Huntington Beach,CA
o`>� r�F 92648
_$ City of Huntington Beach
° t ' `y g APPROVED 7-0
File#: 24-440 MEETING DATE: 7/2/2024
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Eric G. Parra, Interim City Manager
VIA: Chau Vu, Director of Public Works
PREPARED BY: Bill Krill, Real Estate and Project Manager
Subject:
Approve and authorize execution of the Agreement for Acquisition and Escrow Instructions
for the purchase of two Encyclopedia Lots (APNs 110-152-23 and 110-182-11), and
appropriation of funds
Statement of Issue:
The City Council is asked to approve an agreement with Richard C. Bemis, for the purchase of two
encyclopedia lots (APNs: 110-152-23 and 110-182-11) on the north side of Ellis Avenue between
Edwards Street and Goldenwest Street. Total purchase amount is expected to not exceed $72,000,
with purchase of the two lots totaling $50,000, along with escrow and due diligence fees not to
exceed $22,000.
Financial Impact:
Funds for this transaction have not been budgeted in the current budget. Therefore, an appropriation
of funds not to exceed $72,000 from the Preliminary Park Development Impact- Non-Residential
Fund Account 23545001.81100 is necessary to complete this transaction. Estimated acquisition
budget is attached.
Recommended Action:
A) Approve the Agreement for Acquisition and Escrow Instructions; and,
B) Authorize the Mayor and City Clerk to execute the agreement and other related documents; and,
C) Authorize the City Manager to execute any other related escrow documents; and,
D) Authorize the appropriation of up to $72,000 from the Preliminary Park Development Impact- Non
-Residential Fund Account 23545001.81100.
Alternative Action(s):
City of Huntington Beach Page 1 of 2 Printed on 6/26/2024
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File #: 24-440 MEETING DATE: 7/2/2024
Do not approve the Agreement and direct staff accordingly.
Analysis:
Huntington Central Park West includes approximately 300 small lots in the area north of Ellis Avenue
between Goldenwest Street and Edwards Street that were given to purchasers of encyclopedias in
the early 1900s. Lot sizes vary but are typically 2,800 square feet and zoned as Open Space/Park
(OS-PR). Since the mid-1980s, the City has acquired all but 29 of the original 300 parcels.
The City's goal is to acquire all encyclopedia lots. Once acquired, the lots are to be incorporated into
the surrounding parkland which is consistent with the City's General Plan, Zoning Plan, and Central
Park Master Plan.
The City was approached by the estate of Mr. Richard Bemis to buy the aforementioned parcels. The
City and Mr. Bemis's estate have been in negotiations for the past year, and the parties have reached
the agreed to price of$25,000 per parcel contingent upon third party appraisal of each lot.
Opportunities to purchase encyclopedia lots have become increasingly difficult, primarily due to the
fragmented ownership and difficulty in locating and contacting property owners. As such, staff
recommends approval of the purchase agreement in support of the City's goal of obtaining full
ownership and control of available property adjacent to the Huntington Central Park for future open
space development.
Sufficient funds are available within the City's Park Development Impact - Non-Residential Fund
23545001.81100 and are restricted for acquisition purchases only.
To fund the purchase of these encyclopedia lots, the City Council is required to authorize and
appropriate $72,000, as referenced in the above recommended action.
Environmental Status:
This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections
15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change
in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for
resulting in physical change to the environment, directly or indirectly.
Strategic Plan Goal:
Non Applicable -Administrative Item
Attachment(s):
1. Agreement for Acquisition and Escrow Instructions
2. Estimated Acquisition Budget
3. PowerPoint Presentation
City of Huntington Beach Page 2 of 2 Printed on 6/26/2024
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AGREEMENT FOR ACQUISITION
AND ESCROW INSTRUCTIONS
This AGREEMENT FOR ACQUISITION AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 10th day of July 2024, and
constitutes an agreement by which Richard C. Bemis ("Seller"), agrees to sell, and the CITY OF
HUNTINGTON BEACH, a California municipal corporation ("Buyer"), agrees to purchase on
the terms and conditions hereinafter set forth:
That certain real property described in Exhibit "A" attached hereto, bearing Orange
County Assessor's Parcel Numbers 110-152-23 and 110-182-11 ("Property").
The terms and conditions of this Agreement and the instructions to First American Title
("Escrow Holder")with regard to the escrow("Escrow")created pursuant hereto are as follows:
1. Purchase and Sale. For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase
the Property from Seller,upon the terms and conditions herein set forth.
2. Purchase Price. The purchase price ("Purchase Price") for the Property shall be FIFTY
THOUSAND DOLLARS ($50,000). This sum shall be full payment for the Property and for all
damages of every kind and nature, including, but not limited to, pre-condemnation damages, loss
of rental income and severance damages suffered, any and all claims suffered, or to be suffered,
by reason of the acquisition of the Property.
3. Acknowledgment of Full Benefits and Release.
a. By execution of this Agreement, Seller, on behalf of himself and his respective
successors and assigns, hereby acknowledges that this Agreement provides full payment
for the acquisition of the Property by Buyer, and Seller hereby expressly and uncondi-
tionally waives any and all claims for damages, relocation assistance benefits, severance
damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre-
condemnation conduct, or any other compensation or benefits, other than as already
expressly provided for in this Agreement, it being understood that this is a complete and
full settlement of all acquisition claims, liabilities or benefits of any type or nature
whatsoever relating to or in connection with Buyer',s acquisition of the Property.
b. This Agreement arose out of Buyer's efforts to acquire the Property on a voluntary
basis. Seller acknowledges and agrees that said purchase price is just compensation at
fair market value for said real property and includes any and all fixtures and equipment,
goodwill (if any) and severance. Seller, on behalf of himself and his successors and
assigns, hereby fully releases Buyer, its successors, agents, representatives, and assigns,
and all other persons and associations, known or unknown, from all claims and causes of
action by reason of any damage which has been sustained, or may be sustained, as a
result of Buyer's efforts to acquire the Property or to construct works of improvement
Seller's Initials Buyer'slnitials
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thereon,or any preliminary steps thereto. Seller further releases and agrees to hold Buyer
harmless from any and all claims by reason of any leasehold interest in the Property.
This release shall survive the Close of Escrow.
c. The parties hereto hereby agree that all rights under Section 1542 of the Civil
Code of the State of California are hereby waived. Civil Code Section 1542
provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his/her favor at the time of
executing the release, which if known by him/her must have
materially affected his/her settlement with the debtor."
Notwithstanding the provisions of Civil Code Section 1542, Seller hereby irrevocably
and unconditionally releases and forever discharges the Buyer and each and all of its
officers, agents, directors, supervisors, employees, representatives, and its successors and
assigns and all persons acting by, through, under, or in concert with the Buyer from any
and all charges, complaints, claims, and liabilities of any kind or nature whatsoever,
known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or
"claims") which Seller at any time heretofore had or claimed to have or which Seller at
any time hereafter may have or claim to have, including, without limitation, any and all
claims related or in any manner incidental to this transaction.
I HAVE READ AND UNDERSTOOD PARAGRAPH 3 Acknowledgment of
Full Benefits and Release.
Seller's Initials
4. Payment of Purchase Price. The Purchase Price for the Property shall be payable by
Buyer as follows: Upon the Close of Escrow, Buyer shall deposit or cause to be deposited with
Escrow Holder, in cash or by a certified or bank cashier's check made payable to Escrow Holder
or a confirmed wire transfer of funds, the Purchase Price plus or minus Escrow Holder's estimate
of Buyer's closing costs, prorations and charges payable pursuant to this Agreement. All escrow,
recording and title insurance costs to be paid by Buyer.
5. Escrow.
a. Opening of Escrow. For purposes of this Agreement, the Escrow shall be deemed
opened on the date Escrow Holder shall have received an executed counterpart of this
Agreement from both Buyer and Seller ("Opening Date"). Escrow Holder shall notify
Buyer and Seller, in writing, of the date Escrow is opened and the Closing Date, as
defined in Paragraph 5(b),below. In addition, Buyer and Seller agree to execute, deliver,
and be bound by any reasonable or customary supplemental escrow instructions of
Escrow Holder, or other instruments as may reasonably be required by Escrow Holder, in
order to consummate the transaction contemplated by this Agreement. Any such
1)`5 / / Pik/
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supplemental instructions shall not conflict with, amend, or supersede any portion of this
Agreement. If there is any inconsistency between such supplemental instructions and this
Agreement,this Agreement shall control.
b. Close of Escrow. For purposes of this Agreement, "Close of Escrow" shall be
defined as the date that the Grant Deed, conveying the Property to Buyer, is recorded in
the Official Records of Orange County, California. This Escrow shall close within sixty
(60) days of the Opening Date ("Closing Date").
6. Conditions of Title. It shall be a condition to the Close of Escrow and a covenant of
Seller that title to the Property shall be conveyed to Buyer by Seller by the Grant Deed, subject
only to the following Approved Conditions of Title ("Approved Condition of Title"):
a. A lien to secure payment of real estate taxes, not delinquent.
b. The lien of supplemental taxes assessed pursuant to Chapter 3.5, commencing
with Section 75 of the California Revenue and Taxation Code ("Code"), but only to the
extent that such supplemental taxes are attributable to the transaction contemplated by
this Agreement. Seller shall be responsible for, and hereby indemnifies Buyer and the
Property against, any supplemental taxes assessed pursuant to the Code, to the extent that
such taxes relate to events (including, without limitation, any changes in ownership
and/or new construction)occurring prior to the Close of Escrow.
c. Matters affecting the Approved Condition of Title created by or with the written
consent of Buyer.
d. Exceptions which are disclosed by the Report described in Paragraph 8(a)(1)
hereof and which are approved or deemed approved by Buyer in accordance with
Paragraph 8(a)(1)hereof.
Seller covenants and agrees that during the term of this Escrow, Seller will not cause or
permit title to the Property to differ from the Approved Condition of Title described in this
Paragraph 6. Any liens, encumbrances, easements, restrictions, conditions, covenants, rights,
rights-of-way, or other matters affecting the Approved Condition of Title which may appear of
record or be revealed after the date of the Report described in Paragraph 8(a)(l)below, shall also
be subject to Buyer's approval and must be eliminated or ameliorated to Buyer's satisfaction by
Seller prior to the Close of Escrow as a condition to the Close of Escrow for Buyer's benefit.
Buyer hereby objects to all liens evidencing monetary encumbrances affecting the Property
(other than liens for non-delinquent property taxes) and Seller agrees to cause all such liens to be
eliminated at Seller's sole cost and expense prior to the Closing Date.
7. Title Policy. Title shall be evidenced by the willingness of the Title Company to issue its
CLTA Standard Form Policy or Binder of Title Insurance ("Title Policy") in the amount of the
Purchase Price showing title to the Property vested in Buyer subject only to the Approved
Condition of Title.
, jv
Seller's Initials Buyer's Initials
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8. Conditions to Close of Escrow.
a. Conditions to Buyer's Obligations. The Close of Escrow and Buyer's obligation
to consummate the transaction contemplated by this Agreement are subject to the
satisfaction of the following conditions for Buyer's benefit on or prior to the dates
designated below for the satisfaction of such conditions:
(1) Preliminary Title Report and Exceptions. Immediately after escrow is
opened as provided herein, City agrees to cause First American Title to issue a
Preliminary Title Report relating to the Property. Within fifteen (15) days after
escrow has been opened, the City will cause First American Title to issue an
Amendment to Escrow Instructions, which indicates those title exceptions that the
City will accept. Seller will have ten(10) days after receipt of such amendment to
review and approve it. In the event of non-approval, escrow will fail and each
party will instruct First American Title to cancel the escrow.
(2) Representations, Warranties, and Covenants of Seller. Seller shall have
duly performed each and every agreement to be performed by Seller hereunder.
(3) No Material Changes. At the Closing Date, there shall have been no
material adverse changes in the physical or financial condition of the Property.
(4) Inspections and Studies. On or before thirty (30) days after Opening
Date ("Due Diligence Period"), Buyer shall have approved the results of any and
all inspections, investigations, tests and studies (including, without limitation,
investigations with regard to governmental regulations, engineering tests, soil and
structure investigation and analysis, seismic and geologic reports) with respect to
the Property (including all structural and mechanical systems and leased areas) as
Buyer may elect to make or obtain. The failure of Buyer to disapprove said
results on or prior to the expiration of the Due Diligence Period shall be deemed
to constitute Buyer's approval of the results. The cost of any such inspections,
tests and studies shall be borne by Buyer. During the term of this Escrow, Buyer,
its agents, contractors and subcontractors shall have the right to enter upon the
Property, at reasonable times during ordinary business hours, to make any and all
inspections and tests as may be necessary or desirable in Buyer's sole judgment
and discretion. Buyer shall use care and consideration in connection with any of
its inspections. Buyer shall indemnify and hold Seller and the Property harmless
from any and all damage arising out of, or resulting from the negligence of Buyer,
its agents, contractors and/or subcontractors in connection with such entry and/or
activities upon the Property.
(5) Council Approval. The completion of this transaction, and the escrow
created hereby, is contingent upon the specific acceptance and approval of the
Buyer by action of the Buyer's City Council.
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(6) Condition of Property. The Property is sold in its present condition as of
the date of acceptance subject to the Buyer's investigation rights.
(7) Appraisal. During the Due Diligence Period, Buyer shall have the right to
obtain an appraisal of the Property's fair market value at Buyer's sole cost and
expense. If the appraised fair market value of the Property is less than the
Purchase Price, Buyer may cancel this transaction without penalty. Alternatively,
if the appraised fair market value of the Property is less than the Purchase Price,
the Parties may agree to adjust the Purchase Price to match the appraised fair
market value.
b. Conditions to Seller's Obligation. For the benefit of Seller, the Close of Escrow
shall be conditioned upon the occurrence and/or satisfaction of each of the following
conditions (or Seller's waiver thereof, it being agreed that Seller may waive any or all of
such conditions):
(1) Buyer's Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer,
and
(2) Buyer's Representations. All representations and warranties made by
Buyer to Sellers in this Agreement shall be true and correct as of the Close of
Escrow.
9. Deposits by Seller. At least one (1) business day prior to the Close of Escrow, Seller
shall deposit or cause to be deposited with Escrow Holder the following documents and
instruments:
a. California Withholding Exemption Certificate. A California Withholding
Exemption Certificate (or in the event the Seller is a non-California resident, a
certificate issued by the California Franchise Tax Board)pursuant to the Revenue
and Taxation Code Sections 18805 and 26131, as may be amended, stating either
the dollar amount of withholding required from Seller's proceeds or that Seller is
exempt from such withholding requirement.
b. Grant Deed. The Grant Deed conveying the Property to Buyer duly executed by
Seller, acknowledged and in recordable form.
10. Deposits by Buyer. Buyer shall deposit, or cause to be deposited with Escrow Holder,
the funds which are to be applied toward the payment of the Purchase Price in the amounts and at
the times designated in Paragraph 4 above (as reduced or increased by the proration, debits and
credits hereinafter provided).
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11. Costs and Expenses. The cost and expense of the Title Policy attributable to CLTA
coverage shall be paid by Buyer. The escrow fee of Escrow Holder shall be paid by Buyer.
Buyer shall pay all documentary transfer taxes,if any, payable in connection with the recordation
of the Grant Deed. The amount of such transfer taxes shall not be posted on the Grant Deed, but
shall be supplied by separate affidavit. Buyer shall pay the Escrow Holder's customary charges
to Buyer and Seller for document drafting, recording, and miscellaneous charges. If, as a result
of no fault of Buyer or Seller, Escrow fails to close, Buyer shall pay all of Escrow Holder's fees
and charges. Penalties for prepayment of bona fide obligations secured by any existing deed of
trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240.
12. Prorations. The following prorations shall be made between Seller and Buyer on the
Closing Date,computed as of the Closing Date:
a. Taxes. Real and personal property taxes and assessments on the Property shall be
prorated on the basis that Seller is responsible for (i) all such taxes for the fiscal year of
the applicable taxing authorities occurring prior to the "Current Tax Period," and (ii) that
portion of such taxes for the Current Tax Period determined on the basis of the number of
days which have elapsed from the first day of the Current Tax Period to the Closing Date,
inclusive, whether or not the same shall be payable prior to the CIosing Date. The phrase
"Current Tax Period" refers to the fiscal year of the applicable taxing authority in which
the Closing Date occurs. In the event that as of the Closing Date the actual tax bills for
the year or years in question are not available, and the amount of taxes to be prorated as
aforesaid cannot be ascertained, then rates and assessed valuation of the previous year,
with known changes, shall be used, and when the actual amount of taxes and assessments
for the year or years in question shall be determinable, then such taxes and assessments
will be reprorated between the parties to reflect the actual amount of such taxes and
assessments.
b. No Rental Pro-rations. Pursuant to Paragraph 22(n) Seller warrants that there are
no tenants or written or oral leases on all or any portion of the Property and the Escrow
Holder is hereby instructed not to perform any rental pro-rations at the Close of Escrow.
13. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow, the
Escrow holder shall promptly undertake all of the following in the manner indicated:
a. Prorations. Prorate all matters referenced herein, based upon the statement
delivered into Escrow signed by the parties.
b. Recording. Cause the Grant Deed and any other documents, which the parties
hereto may mutually direct, to be recorded in the Official Records of Orange County,
California, in the order set forth in this subparagraph. Escrow Holder is instructed not to
affix the amount of documentary transfer tax on the face of the Deed, but to supply same
by separate affidavit.
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c. Funds. Disburse from funds deposited by Buyer with Escrow Holder toward
payment of all items chargeable to the account of Buyer, pursuant thereto in payment of
such costs, and disburse the balance of such funds, if any,to Buyer.
d. Documents to Buyer. Deliver the Seller's Certificate and Bill of Sale, executed
by Sellers, and,when issued,the Title Policy to Buyer.
e. Pay demands of existing lienholders. Escrow Holder is hereby authorized and
instructed to cause the reconveyance, or partial reconveyance, as the case may be, of any
such monetary exceptions to Buyer's title to the Property at or prior to the Close of
Escrow.
14. Seller's Representations and Warranties. In consideration of Buyer entering into this
Agreement, and as an inducement to Buyer to purchase the Property, Seller makes the following
representations and warranties, each of which is material and is being relied upon by Buyer (and
the continued truth and accuracy of which shall constitute a condition precedent to Buyer's
obligations hereunder):
a. Authorization. This Agreement has been duly and validly authorized, executed
and delivered by Seller, and no other action is requisite to the execution and delivery of
this Agreement by Seller.
b. Threatened Actions. There are no actions, suits or proceedings pending against,
or,to the best of Seller's knowledge,threatened or affecting the Property in law or equity.
c. Third Party Consents. No consents or waivers of, or by, any third party are
necessary to permit the consummation by Seller of the transactions contemplated
pursuant to this Agreement.
d. No Violation of Law. To the best of Seller's knowledge, there is no violation of
law or governmental regulation by Seller with respect to the Property.
e. Condemnation. There is no pending, or, to the best of Seller's knowledge,
threatened proceedings in eminent domain or otherwise, which would affect the Property
or any portion thereof.
f. Compliance with Law. To the best of Seller's knowledge, all laws, ordinances,
rules, and requirements and regulations of any governmental agency, body, or
subdivision thereof bearing on the Property have been complied with by Seller.
g. Agreements. There are no agreements (whether oral or written) affecting or
relating to the right of any party with respect to the possession of the Property, or any
portion thereof, which are obligations which will affect the Property or any portion
thereof subsequent to the recordation of the Grant Deed, except as may be reflected in the
/ / 1
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Condition of Title,which shall have been approved by Buyer pursuant to the terms of this
Agreement.
h. Documents. To the best of Seller's knowledge, all documents delivered to Buyer
and Escrow Holder pursuant to this Agreement are true and correct copies of originals,
and any and all information supplied to Buyer by Seller is true and accurate.
i. Licensed Permits. To the best of Seller's knowledge, Seller has acquired all
licenses, permits, easements, rights-of-way, including without limitation, all building and
occupancy permits from any governmental authority having jurisdiction.
j. Hazardous Substances. Except as revealed by Seller to Buyer herein, Seller has
no actual knowledge that there are hazardous substances (as defined below) in existence
on or below the surface of the Property, including without limitation, contamination of
the soil, subsoil or groundwater, which constitutes a violation of any law, rule, or
regulation of any governmental entity having jurisdiction thereof, or which exposes
Buyer to liability to third parties. Seller has not used the Property,or any portion thereof,
for the production, disposal, or storage of any hazardous substances, and Seller has no
actual knowledge that there has been such prior use of the Property, or any portion
thereof; or that there has been any proceeding or inquiry by any governmental authority
with respect to the presence of such hazardous substances on the Property or any portion
thereof. Without limiting the other provisions of this Agreement, Seller shall cooperate
with Buyer's investigation of matters relating to the foregoing provisions of this
paragraph, and provide access to, and copies of, any data and/or documents dealing with
potentially hazardous substances used at the Property and any disposal practices
followed. Seller agrees that Buyer may, with Seller's prior approval, make inquiries of
governmental agencies regarding such matters, without liability to Seller for the outcome
of such discussions. For purposes of this Agreement, the term "hazardous substances"
means; (i) any substance, product, waste, or other material of any nature whatsoever
which is or becomes listed, regulated, or addressed pursuant to the Comprehensive
Environment Response, Compensation and Liability Act (CERCLA), 42 United States
Code Section 9601 et seq.; the Hazardous Material Transportation Conservation and
Recovery Act, 42 United States Code Section 1801 et seq.; the Resources Conservation
and Recovery Act, 42 United States Code Section 6901 et seq.; the Clean Water Act, 33
United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United
States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health
and Safety Code Section 25100 et seq.;the California Hazardous Substance Account Act,
Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California
Health and Safety Code Section 25280 et seq. (Underground Storage or Hazardous
Substances); the California Hazardous Waste Management Act, Health and Safety Code
Section 25170.1 et seq.; California Health and Safety Code Section 25501 et seq.
(Hazardous Materials Release Response Plans and Inventory); or the California Porter-
Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended
(the above-cited California state statutes are hereinafter collectively referred to as "the
Seller's Initials • er'sInitials
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State Toxic Substances Laws")or any other federal, state, or local statute, law, ordinance,
resolution, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous or toxic substance hereafter in
effect; (ii) any substance, product, waste, or other material of any nature whatsoever
which may give rise to liability under any of the above statutes or under any statutory or
common law theory based on negligence, trespass, intentional tort, nuisance or strict
liability or under any reported decisions of a state or federal court; (iii) petroleum or
crude oil other than petroleum and petroleum products which are contained within
regularly operated motor vehicles; and (iv) asbestos.
k. Reserved.
1. Pollutants. No pollutants or waste materials from the Property have ever been
discharged by Seller into any body of water, and Seller has no actual knowledge of any
such pollution emission by any other person or entity.
m. Waste Disposal. No portion of the Property has ever been used by Seller as a
waste storage or disposal site,and Seller is not aware of any such prior uses.
n. No Notices. Seller has received no written notice of any change contemplated in
any applicable laws, ordinances or restrictions, or any judicial or administrative action, or
any action by adjacent landowners, or natural or artificial conditions upon the Property
which would prevent, impede, limit, or render more costly Buyer's contemplated use of
the Property.
15. Buyer's Representations and Warranties. In consideration of Seller entering into this
Agreement, and as an inducement to Seller to sell the Property to Buyer, Buyer makes the
following representations and warranties, each of which is material and is being relied upon by
Seller (the continued truth and accuracy of which shall constitute a condition precedent to
Seller's obligations hereunder):
a. This Agreement and all documents executed by Buyer under this Agreement
which are to be delivered to Seller are, or at the time of Close of Escrow will be, duly
authorized, executed, and delivered by Buyer, and are, or at the Close of Escrow will be
legal,valid, and binding obligations of Buyer, and do not, and at the Close of Escrow will
not violate any provisions of any agreement or judicial order to which Buyer is a party or
to which it is subject.
b. The representations and warranties of Buyer set forth in this Agreement shall be
true on and as of the Close of Escrow as if those representations and warranties were
made on and as of such time.
16. Damage or Condemnation Prior to Closing. Seller shall promptly notify Buyer of any
knowledge by Seller of casualty to the Property or any condemnation proceeding commenced
411
Seller's Initials B•yer's Initials
Page 9 of 13
24-14192/332732
prior to the Close of Escrow. If any such damage or proceeding relates to, or may result in, the
loss of any material portion of the Property, Seller or Buyer may, at their option, elect either to:
(a) terminate this Agreement, in which event all funds deposited into Escrow by
Buyer shall be returned to Buyer and neither party shall have any further rights or
obligations hereunder, or
(b) continue the Agreement in effect, in which event upon the Close of Escrow Buyer
shall be entitled to any compensation, awards, or other payments or relief resulting from
such casualty or condemnation proceeding.
17. Notices. All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered or sent by registered or certified mail,postage prepaid,
return receipt requested. Notice shall be deemed received upon the earlier of(a) if personally
delivered, the date of delivery to the address of the person to receive such notice, or(b)if mailed,
four business days after the date of posting by the United States Post Office.
The Buyer's mailing address is: The Sellers' mailing address is:
City of Huntington Beach Richard C. Bemis, do
Public Works Department David A. Bradley,his attorney in fact
Attn: William Krill 2031 Terraza Place
2000 Main Street, P.O. Box 190 Fullerton, CA 92835
Huntington Beach, CA 92648
Notice of change of address shall be given by written notice in the manner detailed in this
paragraph. Rejection or other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to constitute receipt of the notice,
demand, request, or communication sent.
18. Legal Fees. In the event suit is brought by either party to construe, interpret and/or
enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each
party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to
recover its attorney's fees from the non-prevailing party.
19. Assignment. Seller may not assign, transfer or convey its rights or obligations under this
Agreement without the prior written consent of Buyer, and then only if Seller's assignee assumes
in writing all of Seller's obligations hereunder; provided, however, Seller shall in no event be
released from its obligations hereunder by reason of such assignment.
Y /Seller's Initials /0_112
yer'slnitials
Page 10 of 13
24-14192/332732
20. Seller's Indemnification. Seller hereby agreed to indemnify, defend and hold harmless
Buyer from and against any and all obligations, liabilities, claims, liens, encumbrances, losses,
damages, costs and expenses, including without limitation, attorneys' fees, whether direct,
contingent, or consequential, incurred by Buyer relating to the Property and arising or accruing
from acts, occurrences, or matters that take place on or before the Close of Escrow or resulting
from any breach by Seller of his representations, warranties and covenants contained in this
Agreement.
21. Brokerage Commissions. Upon close of escrow, Seller agrees to pay compensation to his
Broker, if any, as specified in separate written agreement between Seller and Broker. Seller
agrees that should any claim be made for brokerage commissions or finder's fees by any broker,
agent, finder or similar entity, by, through or on account of any acts of Seller or its agent,
employees or representatives, Seller will indemnify, defend and hold the Buyer free and
harmless from and against any and all loss, liability, cost, damage and expense (including
attorneys' fees and court costs) in connection therewith. Seller agrees to pay, at their sole cost
and expense, when due, any and all brokerage commissions incurred by Seller heretofore or
hereafter incurred prior to close of escrow.
22. Miscellaneous.
a. Survival of Covenants. The covenants, representations and warranties of both
Buyer and Seller set forth in this Agreement shall survive the recordation of the Grant
Deed and the Close of Escrow.
b. Required Actions of Buyer and Seller. Buyer and Seller agree to execute such
instruments and documents and to diligently undertake such actions as may be required in
order to consummate the purchase and sale herein contemplated, and shall use their best
efforts to accomplish the Close of Escrow in accordance with the provisions hereof.
c. Time of Essence. Time is of the essence of each and every term, condition,
obligation, and provision hereof.
d. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which,together, shall constitute one and the
same instrument.
e. Captions. Any captions to, or headings of, the paragraphs or subparagraphs of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of
this Agreement or any provision hereof.
f. No Obligations to Third Parties. Except as otherwise expressly provided herein,
the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, nor obligate any of the parties hereto, to any person or entity other than the parties
hereto.
U�l l !
Seller's Initials :. er's initials
Page 11 of 13
24-14192/332732
g. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference.
h. Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties
hereto.
i. Waiver. The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision
hereof.
j. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California,with the exception of definitions to be
construed under Federal laws cited in Paragraph 14(j).
k. Fees and Other Expenses. Except as otherwise provided herein, each of the
parties shall pay its own fees and expenses in connection with this Agreement.
I. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations, and communications, oral or written, and contains the entire agreement
between Buyer and Seller as to the subject matter hereof. No subsequent agreement,
representation, or promise made by either party hereto, or by or to an employee, officer,
agent or representative of either party shall be of any effect unless it is in writing and
executed by the party to be bound thereby.
m. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties hereto.
REST OF PAGE NOT USED
Seller's I Pals B"er's Initials
Page 12 of 13
24-14192/332732
n. Leases. Seller warrants that there are no tenants or written or oral leases on all or
any portion of the property and Seller further agrees to hold Buyer harmless and
reimburse Buyer for any and all of its losses and expenses, including relocation assistance
costs, occasioned by reason of any lease of said property held by any tenant of Seller.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first above written.
DATED: 6 /-s / 2 9 Seller: _
Richard C. Bemis by David A. is
t c attorney in fact
9 1 `�
DATED: Buyer:
CITY OF HUNTINGTON BEACH
alifornia municipal corporation
May J /,
Ci lerk
APPROVED AS TO REVIE D AND APPROVE :
6
City ttorney '.€ City Manager
INITIATED AND AP ROVED:
Director of Public Works
D/ t /
Seller's Initials 'er's Initials
Page 13 of 13
24-14192/332732
EXHIBIT A
LEGAL DESCRIPTION
(APN 110-152-23 and 110-182-11)
That certain real property in the City of Huntington Beach, County of Orange, State of
California, described as follows:
Parcel 1: Lot 36, in Tract 32, as per map thereof recorded in Book 9, Page
31 of Miscellaneous Maps, Records of Orange County, California.
Parcel 2: Lot 11, in Tract 45, as per map thereof recorded in Book 9, Page
34, of Miscellaneous Maps, Records of Orange County, California
24-141921338909
Acquistion Estimate
Bemis Lot Bemis Lot
110-152-23 110-182-11
Purchase Price $ 25,000.00 Purchase Price $ 25,000.00
Items Debits Credits/Refunds Items Debits Credits/Refunds
Earnest Money Deposit $ - Earnest Money Deposit $ -
Property Taxes @$125.32 $ 25.06 Property Taxes @$123.94 $ 24.79
Commission @ 3%of Sales Price $ - Commission @ 3%of Sales Price $ -
Title Owners Policy $ 2,500.00 Title Owners Policy $ 2,500.00
Title Sub-Escrow $ 45.00 Title Sub-Escrow $ 45.00
Courier $ 100.00 Courier $ 100.00
Title-Wire Fee $ 75.00 Title-Wire Fee $ 75.00
County Transfer Tax $ 27.50 County Transfer Tax $ 27.50
Escrow Fee $ 1,700.00 Escrow Fee $ 1,700.00
National Hazard Disclosure Reports $ 74.50 National Hazard Disclosure Reports $ 74.50
Escrow PAD $ 400.00 Escrow PAD $ 400.00
Subtotals $ 4,947.06 $ - Subtotals $ 4,946.79 $ -
Adjusted Sales Price(cash to close) $ 29,947.06 Adjusted Sales Price(cash to close) $ 29,946.79
Due Diligence Fees • Due Diligence Fees
Environment Site Assessment-Phase 1 $ 3,500.00 Environment Site Assessment-Phase 1 $ 3,500.00
Appraisal $ 2,500.00 Appraisal $ 2,500.00
Estimated Acquistion Total $ 35,947.06 Estimated Acquistion Total $ 35,946.79
124
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Subject
• Approve of execution the Agreement for Acquisition and Escrow
instructions for the purchase of two Encyclopedia Lots. APN's:
110-12-23 and 110-182-11 .
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126
Statement of Issue
• The City Council is asked to approve an agreement in
the amount of $50,000, along with escrow and due
diligence fees not to exceed $22,000, with Richard C.
Bemis, for the purchase of two encyclopedia lots
(APN's: 110-152-23 and 110-182-11 ) on the north side
of Ellis Avenue between Edwards Street and
Goldenwest Street
to Y� •e.
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127
City owns 271 out of the original 300 encyclopedia
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128
Property - Parcel #1
• APN : 110-182-11
• Owner: Richard Bemis
• Offer Price: 25,000 .00
• Zoning: OS - Open Space
• Parcel has never been developed
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• APN : 110-152-23
• Owner: Richard Bemis
• Offer Price: 25,000 .00
• Zoning: OS-Open Space
• Parcel has never been developed
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132
Terms
• Price: $ 25,000 per parcel
• Appraisal contingency
• Environmental contingency
• 30-day Due Diligence period
• 60 days to •
close
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133
Funding
• Preliminary Park Development Impact — Non Residential
Fund 235
• Account number: 23545001 .81100
• Fund Balance as of 6/30/2024: $ 1 ,005, 163 (unaudited)
dr a1j,"O tPORArpd>,. �"
14 8 17 1$Oe k l f
UA�rtY C of
134
Public Benefit
• The City's goal is to acquire all encyclopedia lots. Once acquired,
the lots are incorporated into the surrounding parkland which is
consistent with the City's General Plan, Zoning Plan, and Central
Park Master Plan.
• Huntington Central Park West includes an assemblage of small lots
in the area north of Ellis Avenue between Goldenwest and Edwards
Streets that were given to purchasers of encyclopedias in the early
1900s. Since the mid-1980s, the City has acquired all but 29 of the
original 300 parcels.
• Sufficient funds are available within the City's Park Development
Impact — Non-Residential Fund 235 and are restricted for acquisition yN0167
purchases only.
c-' ;`
`:17-11Z ilk
Clt"Pi
135
■
ecommen e c ion
• Approve the Agreement for Acquisition and Escrow Instructions
• Authorize Mayor and City Clerk to execute the Agreement and any
other related documents
• Authorize the City Manager to execute and other related escrow
documents
• Authorize the appropriation of up to $72,000 form the Preliminary
Development Impact — Non-Residential Fund.
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