HomeMy WebLinkAbout06 PUR PROP REDHI I-5 04-01-02 NO. 6
AGENDA REPORT
400-10 ~~~
MEETING DATE: APRIL 1,2002 490-10 ~~
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
APPROVAL OF AN AGREEMENT TO PURCHASE REAL PROPERTY FOR
THE RED HILL AVENUE WIDENING PROJECT AT THE I-5 FREEWAY
(ClP NO. 7133)
SUMMARY
The proposed Agreement to Purchase Real Property will begin the final process for the City to
acquire the needed right-of-way at 1450 El Camino Real to construct the Red Hill Avenue
Widening Project at the I-5 Freeway, (CIP No. 7133).
RECOMMENDATION
It is recommended that the City Council take the following actions:
Adopt Resolution 02-30 finding that the acquisition of a portion of Assessor's Parcel No. 500-
142-04 was considered in the final environmental determination for the Red Hill Avenue
Widening Project at the I-5 Freeway (CIP No. 7133) and approving the Purchase Agreement
with The Makena Great American Red Hill Co., LLC, a California Limited Liability Company
(hereinafter "seller").
2. Authorize the Mayor and City Clerk to execute the Purchase Agreement with The Makena
Great American Red Hill Co., LLC on behalf of the City.
FISCAL IMPACT
The City's Capital Improvement Program (CIP) budget for FY 2001-2002 appropriates funds for
right-of-way acquisition for this project. The FY 2001-2002 budget for right-of-way acquisition is
comprised of $14,307 from Measure "M" Turnback funds and $241,381 from Tustin-Santa Ana
Improvement Authority funds.
BACKGROUND
The Red Hill Avenue Widening Project at the I-5 Freeway proposes to widen Red Hill Avenue
between El Camino Real and Nisson Road to meet Major Arterial standards and relieve
congestion. The improvements will include three through lanes in each direction on Red Hill
Avenue, adding a right turn lane to both freeway on-ramps and adding bicycle lanes on Red Hill
Avenue within the project limits. The dual left turn lanes from northbound Red Hill Avenue to
westbound El Camino Real will remain in place.
Approval of an Agreement to Purchase Real Property for the Red Hill Avenue Widening Project at
the I-5 Freeway
April 1,2002
Page 2
In order to construct the improvements, right-of-way is required from four properties in the form of
acquisitions and/or temporary construction easements (TCE). The needed right-of-way is
summarized in the table below.
Acquisition TCE
Parcel Owner/Address Required Acquired
500-142-04
The Makena Great American
Red Hill Co., LLC
1450 El Camino Real
Yes Yes
500-021-02,04
Edgar E. Pankey, Trustee
13922 Red HillAvenue
Yes Yes
432-042-05
Billy F. Mathis,
dba Al's Woodcraft
1471 Nisson Road
Yes Yes
432-401-08
Chevron, USA, Inc.
14082 Red Hill Ave.
No Yes
Offer letters have been sent to all four property owners. The owner of parcel 500-142-04, the
Makena Great American Red Hill Co., LLC has signed the Purchase Agreement for the right-of-
way acquisition required at 1450 El Camino Real. The owner has also signed the required TCE.
The owner of parcel 432-401-08 has also signed the required TCE for 14082 Red Hill Avenue.
The TCE's will be accepted immediately preceding the construction phase of the project.
Staff is still negotiating with the two remaining property owners to obtain the required real estate
acquisitions and TCE's.
TimD. Serlet / - / v
Director of Public Works/City Engineer
Dana R. Kasdan '
Engineering Services Manager
TDS:DRK:ccg:Agmt to purchase prop-widening proj at I-5 & Reso 02-30.doc
Attachments; Resolution 02-30
Purchase Agreement
Location Map
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RESOLUTION 02-30
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA FINDING.THAT THE ACQUISITION OF A PORTION OF
ASSESSOR'S PARCEL NO. 500-142-04 WAS CONSIDERED IN THE
FINAL ENVIRONMENTAL DETERMINATION FOR THE RED HILL AVENUE
WIDENING PROJECT AT THE I-5 FREEWAY (CIP No. 7133) AND
APPROVING THE PURCHASE AGREEMENT
The City Council of the City of Tustin herby resolves as follows:'
WHEREAS, the acquisition of a portion of Assessor's Parcel No. 500-142-04
is needed for public use, namely to be utilized for the widening of Red Hill
Avenue at the I-5 Freeway (" the Red Hill Avenue Widening Project") within the
City of Tustin; and
WHEREAS, on October 6, 1997, the Tustin City Council certified that the
Final Mitigated Negative Declaration as adequately addressing the environmental
effects of the Red Hill Avenue Widening Project; and
WHEREAS, the acquisition of property, including a portion of Assessor's
Parcel No. 500-142-04, was considered in the Final Mitigated Negative
Declaration; and
WHEREAS, State law authorizes the City to acquire the acquire the property
for the above stated purpose; and
WHEREAS, the owner of Assessor's Parcel No. 500-142-04 has executed
the Purchase Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Tustin, as follows:
1. ENVIRONMENTAL FINDING
The City Council of the City of Tustin finds that the effects of the
proposed acquisition were considered in the Final Mitigated Negative
Declaration and that no additional environmental review is required.
2. PUBLIC USE
The public use to which a portion of Assessor's Parcel No. 500-142-04 is
needed is for the widening of an existing roadway, to wit, Red Hill Avenue
within the City of Tustin.
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Resolution No. 02-30
Page 2
DESCRIPTION OF PROPERTY AND EXTENT OF PROPERTY TO BE
ACQUIRED
The property to be acquired is described as a portion of Assessor's
Parcel No. 500-142-04 at the southwest corner of Red Hill Avenue and El
Camino Real, more particularly described in Exhibit A, Legal Description
of Property attached and incorporated herein by reference. The
Purchase Agreement is attached as Exhibit 1..
4. STATUTORY FINDING
The City Council makes the following additional findings:
(a) The public'interest and necessity require the widening of Red Hill
Avenue to accommodate additional traffic within the City of Tustin;
(b) The proposed project is planned and located in a manner that will be
most compatible with the public good and the least private injury.
(c) The property described above is necessary for the proposed road
widening of Red Hill Avenue.
(d) An offer of purchase of the property has been made to the owner of
the property pursuant to Government Code Section 7267.
5. AUTHORIZATION
The Purchase Agreement is hereby approved and the City Manager and
City Attorney are authorized and directed to perform all acts necessary
on behalf of the City for the acquisition of said property.
6. EXPENDITURE OF FUNDS
The City Manager is hereby authorized to expend funds available to the
City for the acquisition of real property described herein.
7. RECORDING
The City Clerk is hereby authorized and directed to record a certified
copy of this resolution of the Office of the County Recorder, County of
Orange.
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Resolution No. 02-30
Page 3
PASSED AND ADOPTED at a regular meeting of the City Council on the
City of Tustin held on the 1st day of April 2002.
ATTEST:
Jeffery M. Thomas, Mayor
City Clerk
"Exhibit 1"
AGREEMENT TO PURCHASE REAL PROPERTY
~TUSTIN, CALIFORNIA
THIS AGREEMENT is entered into this day of ,20 , by
and among the City of Tustin, a municipal corporation (hereinafter "City"), and The
MAKENA GREAT AMERICAN RED HILL CO., LLC, a CALIFORNIA LIMITED LIABILITY
COMPANY (hereinafter "Seller").
RECITALS
1. Seller owns improved real property at 1450 El Camino Real, Tustin,
California, which is shown on Exhibit"A" (hereinafter referred to as the "Property"). Exhibit
"A" is attached hereto and is incorporated herein by this reference.
2. The City desires to acquire the Property for a potential future public purpose.
3. The Seller desires to sell the Property to the City.
NOW, THEREFORE, in view of the above-recitals and mutual promises and
covenants contained herein, the parties agree as follows:
AGREEMENT
Section 1. Sale/Purchase of Property
On the terms and conditions set forth herein, Seller agrees to sell the Property to
City and City agrees.to purchase the Property from Seller. The total purchase price,
payable in cash through escrow, shall be Ninety Two Thousand Three Hundred Twenty
Seven and No/100 Dollars ($92,327.00). In exchange.for receipt of this amount, Seller
releases City of any and all claims by Seller under the United States Constitution
Amendments 5 and 14, and for any and all claims under state law, including but not limited
to claims for relocation benefits and loss of goodwill.
Section 2. Timeframe for Completion of Obligations/Escrow
This sale shall be consummated through an escrow. As soon as possible after this
Agreement is executed, City and Seller shall open an escrow in accordance with this
Agreement at .First American Title Insurance Company ("Escrow Holder") ("Open Escrow"),
2 First American Way, Santa Ana, California, 92707, Attention: Maria Mena ("Escrow
Officer"). This Agreement, along with Exhibits "A," "B," and "C" attached hereto,
constitutes the joint escrow instructions of City and Seller to the EsCrow Holder, which may
be supplemented by escrow holders form agreement. As soon as possible after opening of
escrow, Seller Shall execute the grant deed attached hereto as Exhibit "C" and
incorporated herein by this reference, and shall deposit the-deed with the Escrow. Officer.
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Subject to the conditions described in Section 81 City shall deposit into escrow the sum set
forth in Section 1 above, payable to Seller. The closing date for the escrow shall be no
later than thirty (30) days after opening of escrow, unless such date is extended by written
agreement of the parties. "Close of Escrow" shall be the date when.the grant deed to the
City is recorded. Except as provided in Section 8, City shall pay escrow and closing costs.
City shall also pay the costs of the ALTA title insurance referenced in Section 8.1.
Section 3. Warranty Against Easements Not of Record
To the current, actual knowledge of Seller, Seller warrants to City that as of the date
of this Agreement and as of the date of close of escrow, Seller has not granted any
unrecorded easements or licenses on the Property.
Section 4.. Warranty of No Governmental Action
To the current, actual knowledge of Seller, Seller warrants that there is not now, and
as of close of escrow, there will not be, any violation of any law, ordinance, rule, or
administrative or judicial order affecting the Property, nor is there any judicial order
affecting the Property, nor is there any condemnation, zoning change, or other proceeding
or action (including legislative action) pending, threatened, or contemplated by any
governmental body, except City, authority, or agency that will in any way affect the size or
use of, improvements or construction on, or access to the Property by City. This warranty
does not apply to governmental action where notice has not been provided to Seller.
Section 5. Warranty Against Contracts Concerning Property
To the current, actual knowledge of Seller, Seller warrants that as of the date of this
Agreement and as 'of close of escrow, Seller has not entered into any contracts, leases,
licenses, commitments, or undertakings respecting the Property, or for the performance of
services on the Property, or for the use of the Property or any part of it or any agreement or
contract of any kind pertaining to the Property by which City would become obligated or
liable to anyone.
Section 6. Warranty Against Violations
To the current, actual knowledge of Seller, Seller warrants and represents that as of
the date of this Agreement and as of close of escrow, Seller has no notice or knowledge of
any violation of any statute, ordinance, regulation or administrative or judicial order or
holding, whether or not appearing in public records, with respect to the Property or any
improvements on the Property.
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Section 7. Environmental Compliance
7.1 Seller warrants and represents that, during the time in which Seller has
owned the Property, neither Seller nor, to the current, actual knowledge of Seller, any third
party, has used, generated, manufactured, produced, stored or disposed of, on, under, or
about the Property or transported to or from the Property any hazardous materials,
including without limitatiOn, flammable materials, explosives, asbestos, radioactive
materials, hazardous wastes, toxic substances, or related injurioUs materials, whether
injurious by themselves or in combination with other materials. To the current, actual
knowledge of Seller there is no proceeding or inquiry by any governmental authority,
including without limitation, the California or Federal Environmental Protection Agency or
the California State Department of Toxic Control, or state or regional water quality board,
with respect to the presence of such hazardous materials on the Property or their migration
from or to other property. For purposes of this Agreement, the term "hazardous materials"
shall include but not be limited to substances defined as "hazardous substance,"
"hazardous materials," or "toxic substances" in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (Title 42 United States
Code Sections 9601-9675); the Hazardous Materials Transportation Act, as amended (Title
49 United States Code Sections 1801-1819); the Resource Conservation and Recovery
Act of 1976, as amended (Title 42 United States Code Section 6901-6992k); and any
substance defined as "hazardous waste" in Health and Safety Code Section 25117 or as
"hazardous substance" in Health and Safety Code Section'25316, and in the regulations
adopted and publications promulgated under these laws.
7.2 Seller hereby agrees to indemnify, protect~ hold harmless, and defend City,
its council members, officers, employees, agents, from and against any and all loss,
expense, damage and liability; including without limitation (1) all foreseeable and
unforeseeable consequential damages, directly or indirectly arising from the use,
generation, storage, or disposal of hazardous material on the Property by Seller, Seller's
tenantS, or other person using the Property with Seller's actual knowledge or consent; and
(2) the cost of any required or necessary repair, cleanup, or detoxification and the
preparation of any closure or other required plans, regardless of Whether such action is
required before or after the close of escrow, but only to the extent that such liability is
attributable, directly or indirectly, to the presence or use, generation, storage, release,
threatened release, or disposal of hazardous materials by Seller, Seller's tenants, or other
person using the Property with Seller's consent or actual knowledge that occurred while
Seller owned the Property. Seller's indemnity shall survive close of escrow.
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7.3 From and after Close of Escrow', City agrees to indemnity, protect, hold
harmless and defend Seller from and against any and all loss, expense, damage and
liability, including without limitatiOn (1) all foreseeable and unforeseeable consequential
damages, directly or indirectly arising from the use, generation, storage, or disposal of
hazardous material on the Property by City; and (2) the cost of any required or necessary
repair, cleanup, or detoxification and the preparation of any closure or other required plans,
but only to the extent that such liability is attributable, directly or indirectly, to the presence
or use, generation, storage, releaSe, threatened release, or disposal of hazardous
materials on the Property by City. CitY's indemnity shall survive close of escrow.
Section 8. City's Obligations is Subject to Conditions
City's obligation to' perform this Agreement is subject to City's approval of the
condition of title, described in Sections 8.1 and 8.2, City's approval of the condition of the
Property described in Sections 8.3, and no breach of representations, as described in
Section 8,4.
8.1 First American'Title Insurance Company shall be able to issue in favor of City
an ALTA standard owner's policy of title insurance dated as of close of escrow with liability
not less than the purchase price, covering the Property, showing title vested in Cityl and
· showing as exceptions only current general and special real 'property taxes, bonds and
assessments not yet delinquent, and the exceptions to title that City has approved.
8.2 Promptly, upon opening of escrow, Escrow Holder shall furnish City with 'a
title commitment for an ALTA title policy and legible copies of all documents reported as
exceptions in it ("Title Documents"). City shall notify Seller and Escrow Holder in writing
within ten (10) days after receipt of the title commitment and the Title Documents of City's
disapproval of any exception in those documents. If any supplemental title commitment or
supplemental Title Documents are submitted, then City shall notify Seller and Escrow
Holder in writing within ten (10) days after City's receipt of such items, but not later than the
date mutually agreed upon by the parties in writing for the Close of Escrow, of City's
disapproval of any title exception set forth therein.
Failure of City to notify Seller and Escrow Holder in writing of City's disapproval of
any title exceptions shall conclusively be considered as City's approval of same. If City
disapproves any title matter referred to in this paragraph, then, at City's option, this
Agreement and the escrow shall be canceled, and in such event all funds or other things
deposited by City shall be.returned to City immediately on demand, and City shall pay all
title company and escrow charges.
8.3 City shall pay for a Property Condition Inspection by a competent inspector
selected by the City. City's obligation to close escrow is contingent upon City's approval of
the condition of the Property at it's sole discretion.
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8.4 If there is a breach of any represer~tation or warranty given by Seller pursuant
to this Agreement that is discovered by City before close of escrow, then City may
nevertheless elect to proceed to close the escrow, in which event City shall be deemed to
have elected to waive such breach, or City may elect to terminate this Agreement and the
escrow, in which event this Agreement shall be canceled. If this Agreement and the
escrow are terminated by City's election under this paragraph, then all funds or other things
deposited by City, if any, shall be returned to.City immediately on demand, and Seller shall
pay all title company and escrow charges.
Section 9. Warranty Against Litigation Concerning the Property
To Seller's current, actual knowledge, as of the date of this Agreement and as of
Close of Escrow, no litigation is or will be pending against Seller regarding the use,
operation, development, condition or improvement of the Property, or regarding any right,
title or interest in the Property.
Section 10. Threat of Condemnation
Seller and City acknowledge that the purchase and sale of the Property has been
negotiated under the threat of condemnation of the Property bythe City. In the event of
Seller default, City's ability to perform is prejudiced. Accordingly, in the event the escrow
fails to close by reason of a default by Seller, Seller agrees:
A. That the public interest and necessity requires the acqUisition of the Property.
B. That the Seller waives any claim to severance damages and goodwill under
any eminent domain proceedings commenced at any time hereafter by the City of Tustin
with respect to the Property.
C. That the Seller waives any claim to any relocation assistance in any eminent
domain proceedings commenced by the City of Tustin with respect to the Property.
D. Seller acknowledges that in waiving these claims they have not~'elied on any
representations or statements made or said by City, its agents, attorneys or other
representatives..
Section 11. Attorneys' Fees
If any party files an action or brings any proceeding against the other arising from
this Agreement, or is made a party to any .action or proceeding brOught by the Escrow
Holder, then as between City and Seller and City, the prevailing party shall be entitled to
recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees
to be fixed by the court. The "prevailing party" shall be the party who is entitled to recover
its costs of suit, whether or not suit, proceeds to final judgment.
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A party not entitled to recover its costs sh~ll not recover attorneys' fees. No sum for
attorneys' fees shall be included in calculating the amount of a judgment for purposes of
deciding .whether a party is. entitled to its costs or attorneys' fees.
Section 12. Warranties to Survive Close of Escrow
All warranties, covenants; and other obligations stated in this Agreement shall
survive close of escrow. All warranties, covenants, and other obligations that the City
discovers to be breached before tender of the deed, and that City either expressly waives
or does not object to before such tender, shall not survive tender of the deed.
Section 13. Binding on Successors.
Except as otherwise provided herein,, this Agreement inures to the benefit of, and is
binding on, the parties, their respective heirs, personal representatives, successors, and
asSigns.
Section 14. Integration Clause
This Agreement constitutes the entireagreement among the parties and supersedes
all prior discussion, negotiations, and agreements whether oral or written. Any amendment
to this Agreement, including an oral modification supported by new consideration, must be
reduced to writing and signed by all of the parties before it will be effective.
Section 15. No Representation Regarding Legal Effect of Document
No representation, warranty, or recommendation is made by Seller or City or their
respective agents, employees, or attorneys regarding the legal sufficiency, legal effect, or
tax consequences of this Agreement or the transaction, and each signatory is advised to
submit this Agreement to his or her respective attorney before signing it.
Section 16. Counterparts
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.
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Section '17. Time is of the Essence
Time is of the essence of this Agreement, and failure to comply with the time provisions of
this Agreement shall be.a material breach of this Agreement.
Executed on the date first above written.
CITY OF TUSTIN
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
Lois E. Jeffrey
City Attorney
SELLER
THE MAKENA GREAT AMERICAN RED
HILL COMPANYL LLC, A CALIFORNIA
LIM LIABIL O.
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EXHIBIT A
Legal Description of Property
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EXHil I'i:' "A"
LE6AL DESCRIPTION
THAT PORTION OF THE SOUTHWESTERLY HALF OF-LOT 81 OF PLAT NO. 1 .OF THE RANCHOs
"SANTIAGO DE SANTA ANA" AND 'SAN JOAQUIN," AS SHOWN ON MAP RECORDED ~N BOOKS,
PAGE 7 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,'CALIFORNIA, INCLUDED'
WITHIN. THE EXCEPTION. DESCRIBED IN' DEED TO THE STATE OFCALIFORNIA, (PARCEL 251)
RECORDED IN BOOK 2824, PAGE $2~ OF OFFICIAL RECORDS IN THE OFFICE OF THE OOUNTY
RECORDER OF ORANGE COUNTY, CALIFORNIA, LYING SOUTHERLY, SOUTHEASTERLY, AND
EASTERLY OF THE FOLLOWING DESCRIBED LINE: '
BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE AS "NORTH
81°38'25" WEST .15.630 METERS (51'.28 FI=ET)," IN THA'F CERTAIN FINAL ORDI=R OF
CONDEMNATION, SUPERIOR COURT CASS 581870, AS RECORDED SEPTEMBER 1.5, 1993 AS
INSTRUMENT NO. 93-0626737.OF OFFICIAL RECORDS OF ORANGE COUNTY, AS SAID COURSE
HAVING A BEARING OF NORTH 81°37'46'' WEST, FOR THE PURPOSES OF THIS DESCRIPTION~.
THENCE NORTH 74°59'50" EAST 11.570 METERS (37.96 FEET) TO A LINE PARALLEl' TO AND 24,689
METERS (81 FEET) NORTHWI=S'rERLY FROM THE CENTERLINE OF RED HILL AVENUE; THENCE
ALONG SAID PARALLEL LINE NORTH 40=41'10" EAST 22.045 METERS (72,33 FEE'r); THENCE
LEAVING SAID PARALLEL LINE NORTH 07°14'19" WEST 12.265 METERS (40.24 FEE'r). TO A POINT ON
THE SOUTHWESTERLY LINE OF EL CAMINO REAL. 24.384 METERS (80.FEET)WIDE, PER DEED
RECORDED IN BOOK 7829, PAGE 193, OF OFFICIAL RECORDS OF.SAID ORANGE COUNTY.
EXCEPTING THEREFROM THAT PORTION. DESCRIBED AS PARCEL 72847-1 IN THA~I'i CERTAIN FINAL
ORDER OF CONDEMNATION, SUPERIOR COURT CASE 581870, AS RECORDED SEPTEMBER 15,
1.993 AS INSTRUMENT NO, 93'0626737 OF OFFICIAL RECORDS OF ORANGE'COUNTY.
ALSO EXCEPTING THEREFROM THAT PORTION OF LAND CONVEYED TO THE C.tTY OF TUSTIN,
FOR STREET AND HIGHWAY PURPOSES BY DEED. RECORDED IN BOOK 7829, PAGE 193 OF SAID
OFFICIAL RECORDS.
TOGETHER WITH THE EXTINGUISHMENT OF ALL EASEMENTS OF VEHICULAR ACCESS
APPURTENANT TO THE REMAINING' LANDS IN AND TO RED HILL AVENUE OVER AND ACROSS THE
SOUTHWESTERLY 15.24 METERS (SD.00 FEET) OF THAT CERTAIN COURSE HEREINABOVE
DESCRIBED AS HAVING A LENGTH OF 22.045. METERS (72,3.3 FEETI.
THE. ABOVE DESCRIBED AREA CONTAINS AN AREA OF 282.1 SQUARE METERS (3,036 SQUARE
FEET), MORE OR' LESS.
'SUBJECT TO ANy AND ALL EASEMENTS OR AGREEMENTS, IF ANY, OF RECORD AND/OR FACT.
ALt' AS SHOWN OH EXHIBIT "Bi, ATTACHED HERETO AND E~Y 'THIS REFEREHCE MADE A PART
HEREOF. ' .
RE~~ION EXPIRES. 3/31t2004
DATE
K'~2$~04~EG AL~B0014204. DO C
· :
PLAT OF.THE PART TAKEN
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~ ~ _ PLAT NO,.'I OF THE RANGHOB BANTIAaO
~ ~ DE SANTA ANA AND 8AN JOAaUIN
. -
RED HILL AVE.
-- N40'41'10"E
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' · L = 8.393 ( 27.54
i ~ ' :
~ CITY.OF TUSTIN
RIGHT-OF-WAY EXHIBIT 'B' o~wN
'APN . 500-142-04 :'
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EXHIBIT B
EsCrow Instructions
1. Escrow
City and Seller agree to open escrow in accordance with Section 2 of this Agreement.
This Agreement constitutes the joint escrow instructions of City and. Seller, and Escrow
Agent to whom these escrow instructions are delivered is hereby empowered to act under
this Agreement. The parties hereto agree to do all acts necessary to close this escrow in
the shortest possible time.
As soon as pOssible after open of escrow, Seller will execute the Grant Deed
attached to this Agreement as Exhibit "C" and deposit the executed deed with Escrow
Agent on City's behalf. City agrees to deposit the purchase price upon demand of Escrow
Agent. City and Seller agree to deposit with Escrow Agent any additional instruments as
may be necessary to complete this transaction.
Insurance policies for fire or casualty are not to be transferred, and Seller will cancel
Seller's own policies after close of escrow.
All funds received in this escrow shall be deposited with other escrow funds in a
general escrow account(s) and may be transferred to any other such escrow trust account
in any State or National Bank doing business in the State of California. All disbursements
shall be made by check from such account.
Escrow Agent is Authorized and is Instructed to Comply with the Following
Tax Adjustment Procedure:
Pay and charge Seller for any unpaid delinquent taxes and/or penalties and
interest thereon, and for any delinquent or non-delinquent assessments or
bonds against the Property.
In the event this escrow closes between July 1 and November 1, and the
current tax information is not available from title insurer, Escrow Agent is
instructed to withhold from Seller's proceeds an amount eq ual to 120% of the
prorated amount due based upon the previous fiscal year's second half tax
bill. At such time that the tax information is available, Escrow Agent shall
make a check payable to the County Tax Collector for Seller's prorated
portion of.taxes and forward same to the City and shall refund any difference
to the Seller. In the event the amount withheld is not sufficient to pay Seller's
prorated portion of taxes due, the Seller herein agrees to immediately pay
the difference..
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In the event said tax information is available, Seller's taxes shall be prorated in
accordance with paragraph "C"' below.
Co
From the date that tax information is available, as per paragraph "B," up to
and including June 30th, Seller's current taxes, if unpaid, shall be prorated to
date of close of escrow on the basis of a 365. day year in accordance with
Tax Collector's proration requirements, together with penalties and interest, if
said current taxes are unpaid after December 10 and/or April 10. At close of
escrow, check payable to the County Tax Collector for Seller's pro-rata
portion of taxes shall be forwarded to City with closing statement.
Any taxes which have been paid by Seller, prior to opening of this escrow,
shall not be prorated between City and Seller, butSeller shall have the sole
right, after close of escrow, to apply to the County Tax Collector of said
county for refund. This refund would apply to the period after City's
acquisition, pursuant to Revenue and Taxation Code Section 5096.7.
3. Escrow Agent is Authorized to and Shall:
Pay and charge Seller for any amount necessary to place title in the
condition necessary to satisfy this Agreement.
Pay and charge City for escrow fees and closing costs payable under this
Agreement.
Disburse funds and deliver deed when conditions of this escrow have been
fulfilled by City and Seller.
The Term "close of escrow", if and where written in these instructions, shall mean
the date necessary instruments of conveyance are recorded in the office of the County
Recorder. Recordation of instruments delivered through this escrow is authorized if
necessary or proper in the issuance of said policy of title insurance.
All time limits within which any matter herein specified is to be performed may be
extended by mutual agreement of the parties hereto. Any amendment of, or supplement
to, any instructions must be in writing.
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Time is of the Essence in these Instrdctions and Escrow is to Close as
Soon as Possible
If (except for deposit of money by City, which shall be made by City upon demand of
Escrow Agent before close of escrow) this escrow is not in condition to close within thirty
(30) days from date of these, instructions, any party who then shall have fully complied with
these instructions may, in writing, demand the return of their money or property; but if none
have complied, no demand for return thereof shall be recognized until five (5) days after
Escrow Agent shall have mailed copies of such demand to all other parties at the
respective addresses shown in these escrow instructions, and if any objections are raised
within said five (5) day period, Escrow Agent is authorized to hold all papers and
documents until instructed by a court of competent jurisdiction or mutual instructions. If no
demands are made, proceed with closing of this escrow as soon as possible.
5. Permission to Enter on Premises
Seller hereby grants to City, or its authorized agents, permission to enter upon the
Property at all reasonable times prior to close of escrow for the purpose of making
necessary or appropriate inspections.
6, Loss or Damage to Improvements
Loss or damage to the real property or any improvements thereon, by fire or other
casualty, occurring prior to the recordation of the Deed shall be at the risk of Seller. In the
event that loss or damage to the real property or any improvements thereon, by fire or
other casualty, occurs prior to the recordation of the Deed, City may elect to require that
the Seller pay to City the proceeds of any policy of insurance which may become payable
to Seller by reason thereof, or to permit such proceeds to be used for the restoration of the
damage done, orto reduce the total price by an amount equal to the diminution in value of
said Property by reason of such loss or damage or the amount of insurance payable to
Seller, whichever is greater.
7. Closing Statement
Seller instructs Escrow Agent to release a copy of Seller's statement to City; the
purpose is to ascertain if any reimbursements are due Seller.
11 11/12/01
N:\WP\DOC\
EXHIBIT C
Form of Grant Deed
N:\WP\DOC'~ 12 11/12/01
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
CITY OF TUSTIN
300 CENTENNIAL WAY
TUSTIN, CALIFORNIA 92780
DOCUMENTARY TRANSFER TAX ( FREE RECORDING REQUESTED
Essential to acquisition by the City of Tustin, California See Govt. Code 6103)'
Computed on the consideration or value of property conveyed; OR
Computed on the consideration or value less liens or
encumbrances remaining at time of sale.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Signature of Declarant or Agent determining tax :- Firm Name
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE MAKENA GREAT AMERICAN RED HILL COMPANY, A CALIFORNIA LIMITED LIABILITY COMPANY
hereby GRANT(S) to the CITY OF TUSTIN, A MUNICIPAL CORPORATION
the real property in the City ofTUSTIN, County of ORANGE, State of'California, described as:
SEE EXHIBIT "A" ATTACHED HERETO AND
BY THIS REFERENCE MADE A PART HEREOF
Dated
STATE OF.CALIFORNIA } ss.
COUNTY OF }
On before me,
personally appeared
THE MAKENA GREAT AMERICAN RED HILL COMPANY,
CALIFORNIA LIMITED LIABILITY COMPANY
BY:
BY:
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(les), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hang and official seal.
Signature
MAIL TAX STATEMENTS TO:
(This area for official notarial seal)
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