Loading...
HomeMy WebLinkAbout04 PROJECT 600133 01-15-96ATE' JANUARY' 15, 1996 Inter-Corn NO. 4 1-15-96 TO' WILLIAM A. HUSTON, CITY MANAGER FROM' PUBLIC WORKS DEPARTMENT/WATER SERVICES DIVISION SUBJECT: NEWPORT AVENUE WELLSITE ACQUISITION, PROJECT NO. 600133 RECOMMENDATION That the TUstin City Council, at' its meeting of January 15, 1996, approve the attached agreement regarding the purchase of Newport Avenue Wellsite. The agreement is with the Key Trust, Cleo H. Key and Margaret A. Key, Trustees. FISCAL IMPACT $5,400.00 from Water Capital Improvement Program. BACKGROUND The Newport Avenue Wellsite is located on property acquired by the City as a part of its purchase of the Tustin Water Works. The well has been inactive since the late 1970's due to the high nitrate and salt content of the water. It is intended to be placed back in service as a part of the Seventeenth Street Desalter Project, which is currently nearing completion of construction.· During preconstruction activities, a survey determined the well is not situated on property owned in fee by the City. An investigation determined that, prior to the sale of the Water Works to the City, the owners of the Water Works sold approximately 5000 .square feet of property surrounding the well. While the Water Works retained an easement over the surrounding property, the well itself was found not to be located on the property retained by the Water Works and subsequently sold to the City. The proposed acquisition will encompass the well and allow for securing and improving the appearance of the site. The City will process a lot line adjustment to incorporate the well into the City's existing property. An appraiSal of the property was obtained from Michael J. Francis and Associates, PUli. The purchase price is equal to the appraised value of $5,400.00. Tim D. Serle Director of Public Works/City Engineer Gary R~. Veeh Water Services Manager TDS:GRV:ccg:Newport Ave.. Acq. 1-15-96 ! i ~ ~I ~_~' . ' ' .,¢I . '...... ~ i ~%- ~ .~ . ~/ ..,.... -:--. ' .- ...... ~. · ....... .-% .... · ~~~ '"' ~ '. ~ ~ ~ ~ ,~.. t..-' . . .: ~~~;~~-¢ -;~..:,., ... .... ~ I'" -~ /_..' --~:,~. ' ~ ~~ ~.~, 1~ ! ;:-" . ' , ':~ ..- ~.~~._ ':::::~'~'"'. · . , . ' .GARY SIEGEL ~ COMPAN~ ~an~ 8urveyJn~ ~ Relal~J Services ·  ~'. I~0 Centennial Wa~ Tu~ll~ ~hon~ (~}~-~SO0 ~E~PORT DATE SCALE - ~ ~ , ' ' H~R~II ~0, J~B ] = 2 FIELD BOOK ~ dOB NO. '~31~ ]0 ]3 14 16 17 ]9 2o 2] 22 23 24 25 26 17 AGREEMENT REGARDING PURCHASE OF NEWPORT AVENUE WELLSITE THIS AGREEMENT is entered into this ~ O~k day of ~_~~ , 1995, by and between the City of Tustin, a municipal corporation (hereinafter "City"), and Cleo H. Key and Margaret A. Key, Trustees of the Key Trust, established November 9, 1966. (hereinafter "Sellers") . RECITALS WHEREAS, City owns a water well which' is located on a City maintenance easement overlying Sellers' real property at 12751 Newport Avenue, Tustin, California ("Wellsite Property"); and WHEREAS, the City desires to purchase fee title to the Wellsite Property, which is approximately 363 square feet and to adjust the location of a property line placed in error by previous owners of both City's and Sellers' property; and WHEREAS, additional purposes of this' Agreement are to more effectively secure and maintain the Well and enhance the appearance of the Wellsite Property; and WHEREAS, City intends to build a wall on the Wellsite Property so as enclose and to protect the Well; and WHEREAS, City has obtained an appraisal of the Wellsite Property and offers to purchase it at the appraised value; and WHEREAS, Sellers agree to sell the Wellsite Property to City at the appraised value. NOW, THEREFORE, in view of the above-recitals and mutual promises and covenants herein, the parties agree as follows: AGREEMENT Section 1. Sale of Wellsite Property. Sellers agree to sell approximately 363 square feet of real property to City. Such property is located at 12751 Newport Avenue, Tustin, California, and is shown on Exhibit "A" attached hereto and incorporated herein by this reference. City agrees to pay the total sum of Five Thousand, Four Hundred Dollars ($5,400.00) for the Wellsite Property. Section 2. CEQA Determination and Lot Line Adjustment. As a condition precedent to the sale, City shall aSsist Sellers to obtain City approval of a lot line adjustment, and City shall comply with requirements of the California Environmental Quality Act ("CEQA") for both the lot line adjustment and purchase of the Wellsite Property. City shall waive application fees and absorb all permit costs associated with the lot line adjustment. City shall I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II00 13758 prepare all necessary documents. Sellers shall cooperate with City, and siqn the application and permit documents. Section 3. Time Frame for Completion of Obliqations/Escrow This sale shall be consummated through an escrow. Within seven (7) working days of City's notice to Sellers that the lot line adjustment has been finally approved, escrow shall be opened with First American Title Insurance Company, 114 East Fifth Street, Santa Ana, California 92701, Attention: Eric Bowen. Sellers shall execute the grant deed attached hereto as Exhibit "B" and incorporated herein by this reference, and shall deposit the deed into escrow. Subject to the conditions, as described in Section 9, City shall deposit into escrow the sum set forth in Section 1 above, payable to Sellers. 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 City is recorded. Except as provided in 9.3, City shall pay all escrow and closing costs. City shall pay the costs of the ALTA title insurance· referenced in Section 9. Section 4. Warranty Against Easements Not of Record. TO the current, actual knowledge of Sellers, Sellers warrant to City that as of the date of this Agreement and as of the date of close of escrow, they have not granted any unrecorded easements o~ licenses on the Wellsite Property. Section 5. Warranty of No Governmental Action. To the current, actual knowledge of Sellers, Sellers warrant 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 Wellsite Property, nor is there any condemnation (excepting the condemnation threatened by City), 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 Wellsite Property by City. This warranty does not apply to governmental action where notice has not been provided to Sellers. Section 6. Warranty Aqainst Contracts Concerninq Property. To the current, actual knowledge of Sellers, Sellers warrant that as of the date of this Agreement and as of close of escrow, Sellers have not entered into any contracts, leases, licenses, commitments, or undertakings respecting maintenance of the Wellsite Property or equipment on the Wellsite Property, or the performance of services on the Wellsite Property, or the use of the Wellsite Property or any part of it or any agreement or contract of any kind pertaining to the property by which City would become obligated o: liable to anyone. )022 4 2 10 11 12 14 16 17 18 19 20 21 22 23 24 25 26 27 28 1100- 13758 Section 7. Environmental Compliance. Sellers warrant and represent that, during the time in which Sellers have owned or occupied the Wellsite Property, neither Sellers nor, to the current, actual knowledge of Sellers, 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; except that Sellers believe that water in the well, underground water, and soils may have been contaminated by unknown third parties. To the current, actual knowledge of Sellers there is no proceeding or inquiry by any governmental authority, including without limitation the Environmental Protection Agency or the California State Department of Health Services, 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 Sections 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. Sellers hereby agree to indemnify, protect, hold harmless, and defend City, its councilmembers, officers, employees, and 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 Wellsite Property by Sellers, Sellers' tenants, or other person using the Wellsite Property with Sellers consent (except City); 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 Sellers, Sellers' tenants, or other person using the Wellsite Property with Sellers' consent (except City), that occurred while Sellers owned the Wellsite Property before tender of the deed in City's name. Sellers shall have no liability or indemnity responsibility for actions by City on the maintenance easement on the Wellsite Property. Sellers' indemnity shall survive close of escrow. )022 4 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 13758 From and after close of escrow, City agrees to indemnify, protect, hold harmless and defend Sellers and their respective partners, directors, officers, employees, and 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 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 tender of the deed. Section 8. Warranty Aqainst Violations. To the current, actual knowledge of Sellers, Sellers warrant and represent that as of the date of this Agreement and as of close of escrow, they have 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 Wellsite Property or any improvements on the Wellsite Property. Section 9. City's Obliqation is Subject to Conditions. City's obligation to perform this Agreement is subject to City's approval of the condition of title, described in 9.1 and 9.2, and no breach of representations, as described in 9.3. 9.1 First American Title Insurance Company ("Escrow Holder) 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 Wellsite Property, showing title Vested in City, 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. 9.2 Promptly, upon execution of this Agreement by all parties, Sellers shall furnish Escrow Holder with a true and correct copy of the Key Family trust, and a letter warranting that there are no unrecorded leases by Sellers affecting the Property. 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 Sellers 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 Sellers 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. )022 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 1100- 13758 Failure of City to notify Sellers 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 cancelled, 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. 9.3 If there is a breach of any representation or warranty given by Sellers 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 cancelled. If this Agreement and the escrow are terminated by Buyer's election under this paragraph, then all funds or other things deposited by City shall be returned to Buyer immediately on demand, and Sellers shall pay all title company and escrow charges. Section 10. Warranty Aqainst Litigation Concerninq the Property. To Sellers current, actual knowledge, as of the date of this Agreement and as of close of escrow, no litigation is or will be pending against Sellers regarding the use, operation, development, condition or improvement of the Wellsite Property, or regarding any right, title or interest in the Wellsite Property. Section 11. Threat of Condemnation. Sellers and City acknowledge that the purchase and sale of the Wellsite Property has been negotiated under the threat of condemnation of the property by City. In the' event Sellers default, City's ability to perform is prejudiced. Accordingly, in the event the escrow fails to close by reason of such default by Sellers, Sellers agree: a. The public interest and necessity require the acquisition of the Wellsite Property. b. Sellers waive any claim to severance damages under any eminent domain proceedings commenced at any time hereafter by the City of Tustin with respect to the Wellsite Property. c. Sellers waive any claim to any relocation assistance in any eminent domain proceedings commenced by the City of Tustin with respect to the Wellsite Property. d. Sellers acknowledge that in waiving these claims they have not relied on any representations or statements made or said by city, its agents, attorneys or other representatives. )O22 4 5 Section 12. Relocation Benefits. Sellers hereby acknowledge that the parties have agreed upon the purchase price prescribed herein and have taken into account any claim Sellers might have for relocation assistance and/or benefits. Conditioned upon the payment in full, in a timely manner of the purchase price hereunder, Sellers hereby expressly waive any and all right and claim to any type, kind or amount of relocation benefit whatsoever, including but not limited to any such or similar rights prescribed by any State, Federal or local law and/or regulation, with respect to the property. Section 13. Maintenance Easement. The City will retain the existing maintenance easement adjacent to the Wellsite property. Upon future development of Sellers' property Sellers may request, and. City will negotiate, a reconfiguration of the easement. City will agree to such a reconfiguration if, in the judgement of the City, it retains adequate access to the wellsite for long term maintenance needs. Sellers acknowledge that total area of the easement will not be reduced. Cost for preparation of legal documents for aforementioned reconfiguration of the easement shall be the responsibility of Sellers. 13 Section 14. Attorneys' Fees.. ]4 If either party files an action or brings any proceeding 15 against the other arising from this Agreement, or is made a party to any action or proceeding, brought by the Escrow Holder, then as ]6 between City and Sellers, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, ]7 reasonable attorneys' fees to be fixed by the court. The "prevailing ~party" shall be the party who is entitled to recover its 18 costs of suit, whether or not suit, proceed to final judgment. A party not entitled to recover its costs shall not recover attorneys' 19 fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is 20 entitled to its costs or attorneys' fees. 21 Section 15. Warranties to Survive Close of Escrow. 22 Ail warranties, covenants, and other obligations stated in this Agreement shall survive close of escrow. All warranties, covenants, 23 and other obligations that the City discovers to be breached before tender of the deed, and that City either expressly waives or does 24 not object to 'before such tender, shall not survive tender of the deed. 25 Section 16. Bindinq on Successors. 26 Except as otherwise provided herein, this Agreement inures to 27 the benefit of, and is binding on, the parties, t.heir respective heirs, personal representatives, successors, and assigns. 28 13758 4 6 Section 17. Inteqration Clause. This Agreement constitutes the entire agreement between 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 18. No Representation Regardinq Leqal Effect of Document. 7 No representation, warranty, or recommendation is made by Sellers or City or their respective agents, employees, or attorneys 8 regarding the legal sufficiency, legal effect, or tax consequences of this Agreement or the transaction, and each signatory is advised 9 to submit this Agreement to his or her respective attorney before signing it. 10 Section 19. Time is of the Essence. 11 Time is of the essence of this Agreement, and failure to comply 12 with the time provisions of this Agreement shall be a material breach of this Agreement. 13 14 15 Executed on the date first above written. CITY OF TUSTIN By: 17 ATTEST: 18 19 Pamela Stoker City Clerk 2o APPROVED AS TO FORM: 23 Lois E. Je City Attorney 24 25 26 27 CLEO H. F~, ~s Trustee of the Key Trust, established November 9,1966 28 13758 10 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 1100- 13758 ~022 4 MARGkRE~2]A. KEY, as~rustee of the Key Trust, established November 9, 1966 ALL PURPOSE ACKNOWLEDGM~N-i'- -- --- ) SS: COtJNTY OF //'_'~('(~LA~L~(=_ ) , Notary Public,~ p~rsor,~lly e. pg,,ered personally known to me - OR - proved to me on the basis of satisfac:orY evidence to be the person(s) whose name(s) is/are subscribed to the within inszrument and acknowledged zo me zhaz he/she/they executed the same in his/her/theiT authorized cspacizy(ies), and by his/her/their sicnature(s).on the,ins;rumen~ the person(s), or the endW upon -~, ~ ~heinstrumen~ behalf of which zhe person(s) ac:ed, exu~uz-~ ' Witness my hand and official seat. N 0 T.A~.~tta ~ CAPACITY CLAIMED BY SIGNER: Signazure ~ SIGNER IS ====qEN-FING · Name of Person(s) or Endry(ies) ..~ Individual(s) CorporaTe Officers Ti~ie(s) parzner(s) General Pat':nar cf a LimiTed Parznership Ar:o rney-in-Fa Trustee(s) Subscribing Wilt, ess Guardian/Conservezor Qther: __-.-.---.-- " ~ ,- NT O=cC'''IS'-D BF_.: - - of D ~m : Tide or i ype /! Number of PageS:~e' ~ /J SiGner(s) Other -['haP, h, amea ADo - ~ . 1100.-4]002~ EXHIBIT "A" . o 1___1 1 Page 1 of 1 ' March lO, 1995 Job No. 43794 LEGAL DESCRIPTION PARCEL TO' BE CONVEYED FROM CLEO H. KEY TO CITY OF TUSTIN WATER SERVICE. (NEWPORT AVENUE WELL SITE) That portion of Lot 28 of the Vanderlip and Rowan Tract, in the City of Tustin, County of Orange, State of California, per map recorded in Book ~7, page 73 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California, and also shown on a map recorded in Book l, page 27 of Miscellaneous Maps, in the office of the County Recorder of said Orange County, described as follows: COMMENCING at a point on the centerline of Newport Avenue, S. 39° 50' 00" W., 487.04 feet from the Northeasterly corner o~ said Lot 28, said Northeasterly corner also being the intersection of said centerline of Newport Avenue with the centerline of that certain unnamed road along the North line of said Lot 28 as shown on said maps (which road is now known as Warren Avenue); thence parallel with the centerline of said unnamed road (Warren Avenue), N. 84© 05' 30" W., 90.00 feet to the Southwesterly corner of the parcel described as being excepted from Parcel 2 in Grant Deed to Cleo H. Key and Margaret A. Key, Trustee of the Key Family Trust, recorded April ~4, 1982, as Document No. 82-128752 of Official Records, in the office of the County Recorder of said Orange County, said Southwesterly corner being the TRUE POINT OF BEGINNING of this description; thence continuing N. 84© 05' 30" W., ~2.50 feet; thence N. 5° 54' 30".E., 29.04 feet to a point on the Southerly line of that certain parcel of land described in Grant Deed to Cleo H. Key and Margaret A. Key, Trustee of the Key Family Trust, recorded April ~4, ~982, as Document No. 82-~28749 of said Official Records; thence along said Southerly line, S. 84© 05' 30" E., 12.50 feet to the Northwesterly corner of said parcel described as being excepted from Parcel 2 in said Grant Deed recorded as Document No. 82-~28752 of Official Records; thence along the westerly boundary line of said excepted parcel, S. 5© 54' 30" W., 29.04 feet to the TRUE POINT OF BEGINNING. CONTAINING: 363.0 sq. ft., more or less. Legal descripti, on prepared by: Professional Land Surveyor No. 4~125 · · ~/~ · , ..........."-~-~, ~, . / ~1~ ~ .,~ /. .......... .../~! ~ ~/ _"::/' ,%,~ ~:, '~' / I e':, ~ / ".X..~, · I .,,, . ,.i / ~, / -.~,.. . :-::::::.;: . 21} '~ ~' ?~ ,/.. ~ '"-:,"-- ':"->:>. / ~, I _~'~-~/~ /' · -: "-:?'-::. .... .~ :/, ~2 .'~i~ / .?.. : ....... E %/.~. ~'~ ~:' ':'~ "-'".:::, ~ ~:1~ L~ ~ l /r~ ./ , , ~:' .~~//./! ~,,~ ~,~,~,,~,~ ~' ' q~:-.::!. [ .~I ~ '"'-~ ~ ~'--,?,?.;~:~-~ / '? . · ,~ /~ : - ,,,. · - _ ' / '"Z... ' ""...:~... \ l ---- _____L ~ .:::::::::_, GAL DESCRIPTION & EXHIBIT PREPARED BY: Professional Land Surveyor ~o. 4~25 GARY SIEGEL ~t COMPANY EXHIBIT TO ACCOMPANY LE~d,L DESCRIPTION OF Lund Surveyin(] I~ Related Services PARCEL TO BE CONVEYED FROM CLEO H. KEY TO £1TY OF TUSTIN (WATER SERVICE). I60 CentenniGi W(~y, T~stin~. ¢~liforni~ 92680 Phone (71~)73i-4500 IqE~/PORT'AVENU£ WELL SITE DATE t'IARCH 10, 1995SCALE 1" = 20' FIELD BOOK 214 JOB NO. '43794