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1990-0515_SEASIDE RANCHOS_Real Property AgreementREAL PROPERTY AGREEMENT CIP 111 DEL OBISPO STREET AND CAMINO CAPISTRANO INTERSECTION IMPROVEMENT PROJECT 1. PARTIES AND PROPERTY INTERESTS. This Agreement is made and entered into this /Sf-w day of May 2009, by and between the City of San Juan Capistrano, a California municipal corporation ("City') and property owner Seaside Ranchos, a California corporation, by and through Mr. Robert C. Dolley, in his capacity as President ("Grantor") for the City's acquisition of property interests consisting of a fee simple interest in a land area measured to be approximately nine hundred sixty- two (962) square feet for construction of a roadway and adjacent curb, gutter and sidewalk. This property is legally described and graphically reflected in Attachment 1, attached to this Agreement and incorporated by this reference herein. This fee simple interest referenced herein as the "Property Interest," is located in, on, over and through that certain real property designated as Orange County Assessor's Parcel Number 668-242-02 ("Grantor's Parcel"). Grantor's Parcel in its entirety has a street address of 31873 Del Obispo Street, San Juan Capistrano, CA. Now therefore, and in consideration of the mutual covenants, conditions and advantages herein stated, City, Grantor and each of them agree that in exchange for Grantor's sale of the Property Interest to City, and Grantor's waiver and release as specified herein, City will provide consideration to Grantor upon the terms and conditions stated below. 2. GRANTOR PROVISIONS. a. Grantor hereby agrees to sell the Property Interest to City for City to construct and install pavement, concrete curbs, gutters and sidewalks in connection with City's Capital Improvement Project (CIP) number 111 (the "Project"). City's work on the Project has already commenced. Grantor agrees to the sale of the Property Interest in its entirety with no expectation of any consideration apart from that specified in this Agreement and hereby accepts said consideration as sufficient in exchange for the Property Interest. b. Grantor understands that Grantor has the right to require City to have the Property Interest re -appraised at the City's cost by an appraiser selected by Grantor, and to receive just compensation for the Property Interest based upon an approved independent appraisal. However, as an inducement to City to undertake the Project, Grantor hereby specifically waives and releases, except as limited per City's obligations stated in this Agreement, all rights to such just compensation (except as provided herein), together with any and all potential Grantor claims, demands, rights, liabilities and causes of action against City and its officers, employees, attorneys and agents to which Grantor may be or CIP 111 Real Property Agreement Seaside Ranchos(APN 668-242-02) Page] of 8 allegedly be entitled based as of the date of Grantor's execution of this Agreement, in whole or in part upon any City action(s) or omission(s) arising out of or in any way related to the Project, City's acquisition of the Property Interest, or this Agreement ("Claims'). Claims waived and released by this Agreement specifically include, but are not limited to, claims related to City analysis, consideration, investigations, planning or implementation of the Project, alleged "pre -condemnation activity" of any kind, claims for damages to improvements existing as of the date of this Agreement pertaining to the Property Interest, severance damages, if any, compensation for loss of goodwill, if any, compensation to Grantor for fixtures and improvements, relocation benefits and costs, if any, litigation expenses, any and all cost(s), disbursement(s), expense(s) or damage(s) incurred by Grantor arising out of or related to City's acquisition of the Property Interest, any improvements pertaining to the Property Interest, and finally and in perpetuity, City's work on, or maintenance of the Property Interest, i.e., claims attributable to City's construction, operation, and/or maintenance/use of the Property Interest or any portion thereof used for public purposes or construction purposes. c. Except as set forth above, this waiver and release by Grantor extends to all such Claims, whether or not such Claims are known to Grantor, and Grantor hereby expressly waives his rights under California Civil Code 1542 which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Z/ -'O Grantor's Initials d. Grantor warrants that there are and shall not be at the time of title to the Property Interests vesting in City, any unrecorded encumbrance, including but not limited to any lien, lease, easement, or license, on all or any portion of the Grantor's Parcel, such that would limit or in any way impact upon the absolute right, of the City and/or public, to use and enjoy access to the Property Interests in accord with the "Grant Deed" and the "Title Policy" as those terms are defined below ("Unrecorded Encumbrance"). Grantor shall hold City, its officers, agents, attorneys and employees harmless, and shall defend and reimburse City for any and all of City's liability, claims, demands or losses and expenses, including but not limited to reasonable attorneys' fees for legal counsel acceptable to City, arising or alleged to arise from any such Unrecorded Encumbrance upon Grantor's Parcel or any portion thereof. e. Grantor understands and agrees that in the event Grantor is unable to deliver title to the Property Interests in a form satisfactory to City in a reasonable time, City, as its sole and exclusive remedy, may file an action in eminent domain to CIP 111 Real Property Agreement Seaside Ranchos (APN 668-242-02) Page 2 of 8 acquire the Property Interests. Grantor agrees to waive all claims and defenses to such an action and agrees that this entire Agreement shall constitute a stipulation which may be filed in such action as final and conclusive evidence of just compensation for the Property Interest, including all of the items provided in Chapter 9, Title 7 of the Code of Civil Procedure commencing with 1263.010. f. Within seven (7) business days of City's approval, and execution of this Agreement, Grantor shall execute and deliver to City an executed and duly notarized grant deed, conforming substantially to that attached to this Agreement and incorporated by this reference herein as Attachment 2. Upon recordation, this grant deed will convey Grantor's full title and interest in the Property Interests to the City (the "Grant Deed"). Grantor covenants that it shall deliver the Grant Deed to the City in a form suitable for recordation. 3. CITY PROVISIONS. a. The Parties agree that the total purchase price. for the Property Interest ("Purchase Price"), payable by City to Grantor in cash through the escrow facilitating the transaction underlying this Agreement ("Escrow"), shall be the sum of Thirty nine thousand dollars ($39,000). City's payment to Grantor of the Purchase Price shall be made at the close of Escrow, when the title to the Property Interest, as conveyed by the Grant Deed and the Easements (in the aggregate, the "Instruments'), vests in City, free and clear of all liens, encumbrances, taxes, assessments, and leases (recorded and/or unrecorded), except covenants, conditions, restrictions, and reservations of record, if any. b. City shall provide a letter to Grantor substantially similar to that attached to this Agreement and incorporated by this reference herein as Attachment 3, indicating that City's purchase of the Property Interest via this Agreement has been in lieu of City condemnation of the Property Interest that City staff would have recommended to the City Council of the City of San Juan Capistrano. Furthermore, City agrees to cooperate with Grantor, in accord with all applicable authority, as to the execution of such documentation as Grantor may reasonably require with respect to Grantor's contemplated exchange pursuant to Internal Revenue Code Section 1033. 4. ESCROW AND TITLE INSURANCE a. Within five (5) business days of the Approval, if any, City shall open Escrow with Dawn Niehaus at First American Title Insurance Company, located at 5 First American Way, Santa Ana, CA 92707 ("Escrow Holder"). City shall pay all fees, charges, and costs of Escrow. City shall deposit the Instruments and funds in the amount of the Purchase Price with Escrow Holder within ten (10) business days after opening of Escrow. CIP 111 Real Property Agreement Seaside Ranchos(APN 668-242-02) Page 3 of 8 b. Escrow Holder, at City's expense, shall cause to be issued and delivered to City, as of the Escrow's closing date, a CLTA standard coverage policy of title insurance or, upon City's request therefore an ALTA standard or extended coverage policy of title insurance (a "Title Policy"), issued by First American Title Insurance Company, with liability in the amount of the Purchase Price, covering the Property Interest, and showing title thereto vested in City free of encumbrances and exceptions apart from: A. All non -delinquent general and special real property taxes and assessments for the current fiscal year, pro -rated in accord with the Escrow's closing date (the "Closing Date"); B. The standard printed exceptions and exclusions contained in the CTLA or ALTA form policy; C. Any exceptions created or consented to by City, including without limitation, any exceptions arising by reason of City's possession of or entry on the Property. c. The Closing Date shall be on or before, 2009. Escrow Holder may utilize all or part of this Agreement as escrow instructions. d. Prior to the Closing Date, Grantor shall deposit with Escrow Holder funds sufficient to pay any and all delinquent general and special real property taxes and applicable assessments for the Property Interest through and including the current fiscal year, if any. S. HAZARDOUS MATERIALS. City has visually inspected Grantor's Parcel and undertaken a "Phase V environmental study of the Grantor's Parcel. Grantor warrants that Grantor has provided accurate information to City's environmental consultant regarding history of Grantor's Parcel. City has determined that Grantor's Parcel does not appear to contain hazardous materials including but not limited to gasoline/oil storage tanks, fertilizer or pesticide storage tanks, or any contaminant. This is an "as is" transaction, however City specifically reserves: (i) the right to cancel Escrow and City acquisition of the Property Interests based upon the outcome of City's Phase 1 study; and (ii) all of its rights and remedies under State and Federal law should hazardous materials be found to exist on/under the Property Interest. Furthermore, to the extent that any clean-up costs as to the Property Interest arise, Grantor reserves any and all rights and remedies that it has under State and Federal law to pursue claims against third parties. 6. COUNTERPARTS. CIP 111 Real Property Agreement Seaside Ranchos (APN 668-242-02) Page 4 of 8 This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 7. ATTORNEYS' FEES. In the event any legal action is brought to enforce the terms of this Agreement or to recover damages for its breach, the prevailing party shall be entitled to reasonable attorneys' fees therein as well as attorneys' fees incurred in enforcing any judgment pertaining to such an action. 8. NOTICES. Any notices or documents to be mailed or delivered shall be addressed to or delivered as follows: Grantor,, City: Seaside Ranchos City of San Juan Capistrano c/o Mr. Robert C. Dolley c/o Nisha Patel PO Box 444 32400 Paseo Adelanto Tustin, CA 92781 San Juan Capistrano, CA 92675 Tel. (714) 838-8010 Tel. (949) 443-6350 Fax (714) 838-2993 Fax (949) 493-1251 Email: npatel@sanjuancapistrano.org A notice or document mailed or delivered pursuant to this Agreement may be transmitted and shall be effective upon its transmission via facsimile provided that a "hard copy" of same is transmitted via United States Mail and received by its intended recipient within ten (10) business days of the facsimile transmission. 9. BINDING ON HEIRS AND ASSIGNS. The terms, conditions, covenants and agreements set forth herein shall apply to and bind the heirs, executors, administrators, successors and assigns of the undersigned parties hereto (each referenced below individually as a "Party" and referenced jointly as the "Parties"). 10. ENTIRE AGREEMENT. INTERPRETATION. AND MODIFICATION. This Agreement reflects, contains, includes and supersedes any and all understandings, agreements, representations, inducements or promises between the Parties, oral or written, if any. Neither of the Parties relies upon any warranty, promise, representation, or agreement not contained in writing herein. No provision CIP 111 Real Property Agreement Seaside Ranchos (APN 668-242-02) Page 5 of 8 of this Agreement shall be interpreted for or against either of the Parties because its legal representative drafted such provision. This Agreement shall be construed as if jointly prepared by both Parties. Any modification of this Agreement must be in writing duly signed by both of the Parties. No waiver of any term or condition of this Agreement shall be a continuing waiver thereof. 11.SEVERABILITY. If in the context of litigation, any provision of this Agreement is determined to be unenforceable in whole or in part for any reason, any remainder of such a provision, and of the entire Agreement will be severable, and remain in full force and effect. 12. BREACH, CONSENT THERETO, AND WAIVER. No term or provision of this Agreement shall be deemed waived, and no breach thereof excused, unless such waiver or consent to breach is written and signed by the Party alleged to have waived a provision and/or consented to a breach. Any consent or waiver by a Party with respect to a breach by the other Party, whether express or implied, shall not constitute consent to, waiver of, or excuse for, any other different or subsequent breach. Failure by a Party to enforce a provision of this Agreement at any time shall not be construed as a waiver of that provision. 13. HEADINGS. All section headings contained in this Agreement are for convenience or reference only, do not form a part of this Agreement and shall not effect in any way the meaning or interpretation of this Agreement. 14. JURISDICTION AND VENUE. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the Parties agree that the venue shall be Orange County, California. 15. EXECUTION OF AGREEMENT, EFFECTIVE DATE. The Parties agree and acknowledge that they have executed this Agreement freely, voluntarily and upon the advice of counsel to the extent that any was desired. This Agreement shall be fully effective and binding upon the Parties as of the date and year first written above. 16.TIME OF THE ESSENCE. CIP 111 Real Property Agreement Seaside Ranchos (APN 668-242-02) Page 6 of 8 Time is of the essence of this Agreement and each of the Parties shall promptly execute all documents necessary to effectuate the intent herein and shall perform in strict accordance with each of the hereinabove provisions. 17. INDEPENDENT LEGAL COUNSEL. Each undersigned Party acknowledges that it has been represented by independent legal counsel of its own choice throughout all of the negotiations that preceded the execution of this Agreement or has knowingly and voluntarily declined to consult legal counsel; furthermore, each Party has executed this Agreement with the consent and on the advice of such independent legal counsel or knowingly and intelligently waived such consent and advice. 18. PARTIES DULY AUTHORIZED. Each of the Parties represents and warrants that it is duly authorized to enter into the transaction underlying this Agreement. 19. INDEPENDENT INVESTIGATION. Each Party to this Agreement has made an independent investigation of the facts pertaining to the provisions contained in this Agreement and all of the matters pertaining thereto as deemed necessary. SIGNATURES FOLLOW CIP 111 Real Property Agreement Seaside Ranchos(APN 668-242-02) Page 7 of 8 IN WITNESS WHEREOF, the undersigned parties have executed this Agreement the day and year first written above. Is] kvim CITY OF SAN JUAN CAPISTRANO, A CALIFORNIA MUNICIPAL CORPORATION CrT-INTi%T:I SEASIDE RANCHOS, A CALIFORNIA CORPORATION L BY: A,K NIELSEN, MAYOR ROBE T C. DO EY, PRESIDENT ATTEST: ;yl APPROVED AS TO r) ll%/ /1'/ -rd /1' 1/0 Z5if-,r(ATTORNV City Attorney CIP 111 Real Property Agreement Seaside Ranchos (APN 668-242-02) Page 8 of 8 EXHIBIT "A" LEGAL DESCRIPTION All of Assessors Parcel No. 668-242-02 That portion of Lot 31 of Tract No. 103, in the City of San Juan Capistrano, County of Orange, State of California, as shown on map filed in Book 11 Pages 26 through 33, inclusive, of Miscellaneous Maps, Records of said Orange County, bounded as follows: Northeasterly by southwesterly line of Parcel 1 of Parcel Map No. 89-434, as filed in Book 255 Pages 36 and 37 of Parcel Maps, Records of said county; Westerly by the easterly line (and its southerly prolongation) of Parcel Map No. 87-367, filed in Book 230 Pages 41 through 43, inclusive, of Parcel Maps, Records of said County; Southerly by the westerly prolongation of that certain course in the southerly line of said Parcel 1 of Parcel Map No. 89-434 shown as " N89"00'00" W 6.12'" on said map. Contains 962 square feet, more or less As shown on Exhibit "B" attached hereto and by this reference made a part hereof David O. Knell PLS 5301 Date 61\4( ;:.r C:\SanJuancopistrano\668-242-14Fee.doc er Decemb18, 2008 rat r-ITdCh5l:1alfiI 0 �0 Is I EXHIBIT WWB" 589.00'30"E v iD M �- DEL OBISPO STREET wade WILLDAN SCALE 1'=90' DALEDEC 11, 4008 SKETCH TO ACCOMPANY f ENGINEERS O PLANNERS DRAWN BY D.BEYEBBACH 1668-242- DC \ /_\ f/ ON099F0.03 i1NRf111 NON1M. 9UIlE ,�! LEGAL DESCRIPTION IN9UlTNY. G. !1)K-!,9) CWED BY D.WNELL SJCAPlOEL/BW7 AWES i liZ 1 900ii0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493-1053 FAX www.sanjuancapistrano. oag May 5, 2009 VIA FIRST CLASS MAIL MEMBERS OF THE CITY COUNCIL SAM ALLEVATO LAURA FREESE THOMAS W. HRIBAR MARK NIELSEN DR. LONDRES USO Seaside Ranchos / P c/o Mr. Robert C. Dolley l— PO Box 444 Tustin, CA 92781 7 Re: Property Acquisition by the City of Sa m r as it C Assessor's Parcel Number 668-242-02 Dear Mr. Dolley: j� wee On behalf of the City San Juan Capistrai 121 Q W `N concluding our negotiations regarding the City's ac �LZrc) 5 Cr interests that may be described as follows: F S c r� Assessor's Parcel Number 668-242-(_, ouaaYic unrest m property measured to be approximately nine hundred sixty-two (962) square feet. As you know, the City is acquiring these interests from Seaside Ranchos in connection with its CIP 111, DEL OBISPO STREET AND CAMINO CAPISTRANO INTERSECTION IMPORVEMENT PROJECT. The fee simple interest is for construction of a roadway and adjacent curb, gutter and sidewalk. This letter formally advises you that had you failed to reach an agreement with the City providing for the City's acquisition of these property interests ("Acquisition') upon mutually acceptable terms and conditions, the City Attorney would have commenced eminent domain proceedings to acquire the interest via condemnation. Sincerely, Nasser Abbaszadeh Public Works Director, City of San Juan Capistrano ATTACHMENT San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recycled paper