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Home My WebLink About06 PURCHASE PROP. 04-07-03AGENDA REPORT Agenda Item Reviewed: City Manager Finance Director 6 MEETING DATE: TO: FROM: SUBJECT: APRIL 7, 2003 WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION APPROVAL OF AN AGREEMENT TO PURCHASE REAL PROPERTY FOR THE IRVINE BOULEVARD AND NEWPORT AVENUE INTERSECTION ENHANCEMENT PROJECT (APN 500-111-01 THROUGH 04: ROBERT H. KO AND NANCY M. KO) (CIP NO. 7118) SUMMARY The proposed Agreement to Purchase Real Property will begin the final process for the City to acquire the needed right-of-way at 13102-13152 Newport Avenue (APN 500-111-01 through 04) to construct the Irvine Boulevard and Newport Avenue Intersection Enhancement Project, (CIP No. 7118). RECOMMENDATION It is recommended that the City Council take the following actions: . Adopt Resolution 03-49 finding that the acquisition of a portion of Assessor's Parcel Nos. 500-111-01 through 04 was considered in the final environmental determination for the Irvine Boulevard and Newport Avenue Intersection Enhancement Project (CIP No. 7118) and approving the Purchase Agreement with Robert H. Ko and Nancy M. Ko (hereinafter "seller"). 2. Authorize the Mayor and City Clerk to execute the Purchase Agreement with Robert H. Ko and Nancy M. Ko on behalf of the City. FISCAL IMPACT The City's Capital Improvement Program (CIP) budget for FY 2002-2003 appropriates funds for right-of-way acquisition for this project. The FY 2002-2003 budget for right-of-way acquisition is comprised of Measure "M" Competitive funds, Measure "M" Turnback funds, Tustin-Santa Ana Improvement Authority funds and Proposition 111 Gas Tax funds. Approval of the Purchase Agreement will authorize an expenditure of $24,748 for right-of-way acquisition. The Temporary Construction Easement (TCE) and escrow and title fees will be additional costs. These costs are $3,389 for the TCE and an estimated $1,500 for escrow and title fees. Approval of an Agreement to Purchase Real Property for the Irvine Boulevard and Newport Avenue Intersection Enhancement Project April 7, 2003 Page 2 BACKGROUND The Irvine Boulevard and Newport Avenue Intersection Enhancement Project proposes to widen the intersection of Irvine Boulevard and Newport Avenue and both arterials beyond the intersection. The limits of the widening on Irvine Boulevard are from the west side of Holt Avenue to 100 feet east of Elizabeth Way and on Newport Avenue from First Street to Wass Street. On Irvine Boulevard, the improvements will include three through lanes in each direction with double left turn lanes in each direction at Newport Avenue. On Newport Avenue the improvements will include three through lanes in each direction between Holt Avenue and the north side of Old Irvine Boulevard. Double left turn lanes will be provided for southbound Newport Avenue at Old Irvine Boulevard and for northbound Newport Avenue at Holt Avenue. In order to construct the improvements, right-of-way is required from fourteen (14) properties in the form of acquisitions and/or TCE's. For the subject parcel, acquisition and a TCE are required. The cost for acquisition and obtaining the TCE for the parcel owned by Robert H. Ko and Nancy M. Ko is as follows: Acquisition Cost $ 24,748 TCE Cost $ 3,389 Total Cost $ 28,137 The owners of parcels 500-111-01 through 04, Robert H. Ko and Nancy M. Ko, have signed the Purchase Agreement for the right-of-way acquisition required at 13102-13152 Newport Avenue. The owners have also signed the required TCE for APN 500-111-01 through 04. The TCE will be accepted immediately preceding the construction phase of the project. Tim D. Serlet Director of Public Works/City Engineer Staff will be submitting the other Purchase Agreements for approval by the City Council when they are signed by the corresponding property owner. ~...~/,~~./~~~/~~Dana R Kasdan. Engineering Services Manager TDS:DRK:ccg:Agmt to purchase prop Irvine & Newport Ko & Reso. 03-28.doc Attachments: Resolution 03-49 Purchase Agreement Location Map RESOLUTION NO. 03-49 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT THE ACQUISITION OF A PORTION OF ASSESSOR'S PARCEL NOS. 500-111-01 THROUGH 04 (13102-13152 NEWPORT AVENUE) WAS CONSIDERED IN THE FINAL ENVIRONMENTAL DETERMINATION FOR THE IRVlNE BOULEVARD AND NEWPORT AVENUE INTERSECTION ENHANCEMENT PROJECT (CIP NO. 7118) AND APPROVING THE PURCHASE AGREEMENT The City Council of the City of Tustin hereby resolves as follows: WHEREAS, the acquisition of a portion of Assessor's Parcel Nos. 500-111-01 through 04 is needed for public use, namely to be utilized for the Irvine Boulevard and Newport Avenue Intersection Enhancement Project ("Enhancement Project") within the City of Tustin; and WHEREAS, on November 1, 1999, the Tustin City Council certified that the Final Mitigated Negative Declaration as adequately addressing the environmental effects of the Enhancement Project; and WHEREAS, the acquisition of property, including a portion of Assessor's Parcel Nos. 500-111-01 through 04 was considered in the Final Mitigated Negative Declaration; and WHEREAS, State law authorizes the City to acquire the property for the above stated purpose; and WHEREAS, the owners of Assessor's Parcel Nos. 500-111-01 through 04 (13102-13152 Newport Avenue) have 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 Nos. 501-111-01 through 04 is needed is for the widening of an existing roadway, to wit, Irvine Boulevard and Newport Avenue within the City of Tustin. Resolution No. 03-49 April 7, 2003 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 Nos. 500-111-01 through 04, its address being 13102-13152 Newport Avenue and 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 Irvine Boulevard and Newport 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 Irvine Boulevard and Newport 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 at the Office of the County Recorder, County of Orange. Resolution No. 03-49 April 7, 2003 Page 3 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin held on the 7th day of April 2003 Tracy Wills Worley, Mayor ATTEST: City Clerk EXHIBIT "A' PARCEL 105-1 THAT PORTION OF LOT 2 OF TRACT NO. 10563, IN THE ~ OF TUSTZN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 446 AT PAGES 14-16 OF MISCELLANEOUS MAPS IN THE OFF~CE OF THE RECORDER OF SA~D COUNTY, DESCP~BED AS FOLLOWS: COMMENCING (P.O.C.) AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE NORTHWESTERLY LINE OF SMD LOT 2 NORTH 39°57'41'' EAST 18.80 FEET TO THE TRUE POINT OF BEGINNING (T.P.O.B.); THENCE CONTINUING NORTH 39°57'41'' EAST 59.24 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE NORTHEASTERLY ALONG SA~D CURVE 23.56 FEET THROUGH A CENTRAL ANGLE OF 90000'00"; THENCE TANGENT FROM S/Ltd CURVE SOUTH 50°02'19'' EAST 2.00 FEET; THENCE LEAVING SA~D NORTHWESTERLY I.~NE SOUTH 39°57'41" WEST 1.72 FEET; THENCE SOUTH 80053'25'' WEST 21.92 FEET; THENCE SOUTH 37°39'38" WEST 28.72 FEET; THENCE SOUTH 47052'54'' WEST 27.52 FEET TO THE TRUE POINT OF BEGINNING.. CONTAINING 287 SQUARE FEET = 0.01 ACRES, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B', ATTACHED HERETO AND BY REFERENCE MADE A PART THEREOF. L.Si BATEMAN, P.L.S. #3757 I TCENSE EXPIRES ]UNE 30, 2004 DATE EXHIBIT "B" PARCEL 105-1 2-220 p 0 C --~'~.~o [P.O.B. " ~ o~~ ~ ~ ~ 105-1 LINE TABLE LINE BEARING LENGTH L 1 NJg'5 7'41 "E 18. 80' L2 NJ9'57'41 "E 59.24' LJ S50'02' 19 "E 2.00' L4 SJ9'57'41 "W 1.72' L 5 S80'5J'25 "W 21.92' L6 SJ7'J9 'J8 "W 28. 72' L7 S47'52'54 "W 27.52' ,., C DEL TA RADIUS 90'00 '00" 15.00' 0 2O 4O 80 GRAPHIC SCALE: 1"=40' AREA SQ.287FEE'F t ACRES0.01 I SQ. I~ETERS ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 2O0 IRVINE, CA 92618 (949) 727-7099 FAX:(949) 727-7097 SHEET 1 OF 1 O.R. 4 788-460 O.R. 2269-81 LENGTH 25.56' II I 5757 \/ ~k E'/,~'.-6-;.'.30-04- PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 3757 DATE LICENSE EXPIRES 06/30//2004 EXHZBTr "A' PARCEL 106-1 THAT PORTION OF LOT ! OF TRACT NO. 10563, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNTA, AS SHOWN ON NAP RECORDED IN BOOK 446 AT PAGES 14-16 OF HISCELLANEOUS HAPS IN THE OFFICE OF THE RECORDER OF 'SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING (P.O.B.) AT THE SOUTHWESTERLY CORNER OF THE PARCEL DESCRIBED TN A GRANT DEED RECORDED JANUARY 18, 1989 AS INSTRUMENT NO. 89-030205 IN THE OFFICE OF THE RECORDER OF SAID COUNTY; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL NORTH 60057'34'' EAST 26.28 FEET TO A POINT ON THE NORTHEASTERLY LINE OF SAID LOT 1; THENCE ALONG THE SAID NORTHEASTERLY LINE SOUTH 49059'54'' EAST 5.93 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 63049'08'' WEST 14.05 FEET; THENCE SOUTH 37039'38'' WEST 120.62 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 1, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, THE RADIUS OF WHICH BEARS NORTH 55°17'16'' WEST 1250.00 FEET; THENCE NORTHERLY ALONG SAID CURVE 89.84 FEET THROUGH A CENTRAL ANGLE OF 04007'04'' TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY, THE RADIUS OF WHICH BEARS SOUTH 59°24'20" EAST 1150.00 FEET DISTANT; THENCE NORTHERLY ALONG SAID CURVE 19.99 FEET THROUGH A CENTRAL ANGLE OF 00059'46'' TO THE POZNT OF BEGINNING. CONTAINING 640 SQUARE FEET = 0.01 ACRES, HORE OR LESS. ALL AS NORE PARTICULARLY SHOWN ON EXHTBIT "B', AITACHED HERETO AND BY REFERENCE N1ADE A PART THEREOF. L.S. BATEMAN, P.L.S. #3757 LICENSE EXPIRES JUNE 30, 2004 DATE EXHIBIT "B" PARCEL 106-1 LOT T R A C-£ N O, I 0-5 6 3 M, 446 / 14 - 16 PARCEL SHEET 1 106-1 89- 030205 / / / / / / O.R. 5182-7 LINE TABLE LINE BEARING LENGTH L 1 N60"57'34 "E 26.28' L2 S49'59 '54 "E 5.93' L3 S63'49 '05 "W 14.05' 0 20 40 80 GRAPHIC SCALE: 1"=40' AREA SQ. FEE7 ACRES SQ. METERS 640 0.01 ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 200 IRVlNE, CA 92618 (949) 727-7099 FAX:(949) 727-7097 / / / / / CURVE TABLE CURVE DEL TA RADIUS ' LENGTH C 1 04'07'04" 1250. 00' 89.84' C2 00'59'46" 1150.00' 19.9o..9' ~50' OF 1 PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 3757 LICENSE EXPIRES 06/30/2004 DATE AGREEMENT TO PURCHASE REAL PROPERTY 13102-13152 NEWPORT AVENUE, TUSTIN, CALIFORNIA APN: 500-111-01 THROUGH 500-111-04 THIS AGREEMENT is entered into this day of ,20__, by and among the City of Tustin, a municipal corporation (hereinafter "City"), and Robert H. Ko and Nancy M. Ko, husband and wife as joint tenants (hereinafter "Seller"). RECITALS 1. Seller owns improved real property at 13102-13152 Newport Avenue, 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 Twenty Four Thousand Seven Hundred Forty Eight and No/100 Dollars ($24,748.00). 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 agrees to 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: Robert Benavente ("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 N:\WP\DOC\ 03/05/03 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. Subject to the conditions described in Section 8, 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. N:\WP\DOC\ 03/05/03 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 councilmembers, 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. 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. N:\WP\DOC\ 03/05/03 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 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. 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. 8.4 If there is a breach of any representation 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. N:\WP\DOC\ 03/05/03 Section 9. Warranty Against Litigation Concerning the Property To Seller'~ current, actual knowledge, a§ of the date of this Agreement and az 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 by the 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 relied 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 ,revailing party" shall be the party who is entitled to recover its costs of suit, whether or not suit, proceeds to final judgment. A party not entitled to recover its costs shall 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. N:\WP\DOC\ 03/05/03 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 entire agreement 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. 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. N:\WP\DOC\ 03~05~03 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: ROBERT H. KO NANCY M. K~.,r' ~:\WP\DOC\ 7 03/05/03 EXHIBIT A Legal Description of Property 03/05/03 N:\WP\DOC\ 8 EXHIBIT "A' PARCEL 105-1 THAT PORTION OF LOT 2 OF TRACT NO. 10563, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 446 AT PAGES 14-16 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENC1*NG (P.O.C.) AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE NORTHWESTERLY LINE OF SAID LOT 2 NORTH 39°57'41'' EAST 18.80 FEET TO THE TRUE POTNT OF BEGZNNZNG (T.P.O.B.); THENCE CONTINUING NORTH 39°57'41'' EAST 59.24 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE 23.56 FEET THROUGH A CENTRAL ANGLE OF 90000'00"; THENCE TANGENT FROM SAID CURVE SOUTH 50°02'19'' EAST 2.00 FEET; THENCE LEAVING SAID NORTHWESTERLY LINE SOUTH 39°57'41" WEST 1.72 FEET; THENCE SOUTH 80053'25'' WEST 21.92 FEET; THENCE SOUTH 37039'38'' WEST 28.72 FEET; THENCE SOUTH 47052'54'' WEST 27.52 FEET TO THE TRUE POZNT OF BEGZNNZNG.. CONTAZNTNG 287 SQUARE FEET = 0.01 ACRES, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "R'_, All'ACHED HERETO AND BY REFERENCE MADE A PART THEREOF. L.S. BATEMAN, P.L.S. #3757 LICENSE EXPIRES ]UNE 30, 2004 DATE EXHIBIT "B" PARCEL 105-1 2-220 LINE TABLE LINE BEARING LENGTH L 1 N59'5 7 '41 "E 18. 80' L2 NJ9"57'41 "E 59.24' LJ S50'02' 19 "E 2.00' L4 SJ9'57'41 "W 1.72' L5 $80'5J'25 "IV 21.92' L6 SJT'J9 'J8 "W 28. 72' L 7 S4 7'52 '54 "W 2 7. 52' CURVE TABLE CURVEI DELTA I RADIUS LENGTH C 1 90'00'00" 15.00' 0 20 40 80 GRAPHIC SCALE: 1"=40' AREA SQ. FEET ACRES SQ. METERS 287 0.01 ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 2OO IRVINE, CA 92618 ~,(949) 727-7099 FAX:(949) 727-7097 2J. 56' C SHEET 1 OF 1 O.R. 4788-460 O.R. 2269-81 PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 3757 DATE LICENSE EXPIRES 06/30/2004 EXHIBIT "A' PARCEL 106-1 THAT PORTION OF LOT 1 OF TRACT NO. 10563, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 446 AT PAGES 14-16 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGI'NNI'NG (P.O.B.) AT THE SOUTHWESTERLY CORNER OF THE PARCEL DESCRIBED IN A GRANT DEED RECORDED JANUARY 18, 1989 AS INSTRUMENT NO. 89-030205 IN THE OFFICE OF THE RECORDER OF SAID COUNTY; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL NORTH 60057'34'' EAST 26.28 FEET TO A POINT ON THE NORTHEASTERLY LINE OF SAID LOT 1; THENCE ALONG THE SAID NORTHEASTERLY LINE SOUTH 49059'54'' EAST 5.93 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 63049'08'' WEST 14.05 FEET; THENCE SOUTH 37039'38'' WEST 120.62 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 1, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, THE RADIUS OF WHICH BEARS NORTH 55°17'16'' WEST 1250.00 FEET; THENCE NORTHERLY ALONG SAID CURVE 89.84 FEET THROUGH A CENTRAL ANGLE OF 04007'04'' TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY, THE RADIUS OF WHICH BEARS SOUTH 59024'20'' EAST 1150.00 FEET DISTANT; THENCE NORTHERLY ALONG SAID CURVE 19.99 FEET THROUGH A CENTRAL ANGLE OF 00059'46" TO THE POZNT OF BEGZNNZNG. CONTAZNZNG 640 SQUARE FEET = 0.01 ACRES, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B'; A1-FACHED HERETO AND BY REFERENCE MADE A PART THEREOF. L.S. BATEMAN, P.L.S. #3757 LICENSE EXPIRES JUNE 30, 2004 DATE EXHIBIT "B" PARCEL 106-1 LOT TRA CT J',J O, 106 63 M..M. 446 114 - 16 // / / 0 20 40 80 GRAPHIC SCALE: 1"=40' O.R. SHEET 1 OF 1 AREA SQ. FEET ACRES SQ. METERS 640 0.01 ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 2OO IRVINE, CA 92618 ,(949) 727-7099 FAX:(949) 727-7097 / / o.R. 7606- 7,~0 / I // / // / // / // / / / / / / O.R. 5182-7 LINE TABLE LINE BEARING LENGTH L 1 N60'57',.~4 "E 26.28' L2 S49'59 '54 "E 5.95' L5 S6,.7'49 '08 "W 14.05' CURVE TABLE CURVE DEL TA RADIUS LENGTH C1 04'07'04" 1250.00' 89.84' C2 00'59'46" 1150.00' 19.99' ~50' I PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 5757 LICENSE EXPIRES 06/50/2004 DATE 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. m Escrow Agent is Authorized and is Instructed to Comply with the Following Tax Adjustment Procedure: Ao B. 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 equal 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. :\WP\DOC\ 9 03/05/03 In the event Said tax information is available, Seller's taxes shall be prorated in accordance with paragraph "C" below. C. 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. D. Any taxes which have been paid by Seller, prior to opening of this escrow, shall not be prorated between City and Seller, but Seller 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: .A. Pay and charge Seller for any amount necessary to place title in the condition necessary to satisfy this Agreement. B. Pay and charge City for escrow fees and closing costs payable under this Agreement. C. 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 th~ 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. ~:\WP\DOC\ 10 03/05/03 m Time is of the Essence in these Instructions 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 ofthese 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, or to 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. bI:\WP\DOC\ 1 1 03/05/03 EXHIBIT C Form of Grant Deed 12 03~05~03 N:\WP\DOC\ Order No. 9931645 Escrow No. WHEN RECORDED MAIL TO: CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CALIFORNIA 92780 Al'TN: PUBLIC WORKS DOCUMENTARY TRANSFER TAX FREE RECORDING REQUESTED Essential to acquisition by the City of Tustin, CA See Govt. Code 6103) 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, ROBERT H. KO AND NANCY M. KO, HUSBAND AND WIFE AS JOINT TENANTS hereby GRANT(S) to the CITY OF TUSTIN, A MUNICIPAL CORPORATION the real property in the City of TUSTIN, 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 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/ars subscribed to the · within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), 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 hand and official seal. Signature MAIL TAX STATEMENTS TO: ROBE"RT H. KO (This area for official notarial seal) N:\WP\DOC\ - 13 EXHIBIT "A' PARCEL 105-1 THAT PORTION OF LOT 2 OF TRACT NO. 10563, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 446 AT PAGES 14-16 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING (P.O.C.) AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE NORTHWESTERLY LINE OF SAID LOT 2 NORTH 39°57'41'' EAST 18.80 FEET TO THE TRUE POINT OF BEGINNING (T.P.O.B.); THENCE CONTINUING NORTH 39°57'41'' EAST 59.24 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE 23.56 FEET THROUGH A CENTRAL ANGLE OF 90000'00"; THENCE TANGENT FROM SAID CURVE SOUTH 50°02'19'' EAST 2.00 FEET; THENCE LEAVING SAID NORTHWESTERLY LINE SOUTH 39°57'41'' WEST 1.72 FEET; THENCE SOUTH 80°53'25" WEST 21.92 FEET; THENCE SOUTH 37039'38'' WEST 28.72 FEET; THENCE SOUTH 47052'54'' WEST 27.52 FEET TO THE TRUE POINT OF BEGINNING.. CONTAINING 287 SQUARE FEET = 0.0! ACRES, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B', A~-FACHED HERETO AND BY REFERENCE MADE A PART THEREOF. L.S. BATEMAN, P.L.S. #3757 LICENSE EXPIRES JUNE 30, 2004 DATE LINE TABLE LINE BEARING LENGTH L 1 NJ9'57'41 "E 18.80' L2 N$9'57'41 "E 59.24' LJ S50'02' 19 "E 2.00' L 4 SJ9'5 7 '4 1 "W 1.72' L 5 S80'53 '25 "W 21.92' L 6 SJ 7'59 'J8 "IV 28. 72' L? S47"52'54 "IV 27.52' CURVE TABLE CURVE DEL TA RADIUS LENGTH CI 90'00'00" 15.00' 2J. 56' EXHIBIT "B" PARCEL 105-1 2-220 T.P.O.B. <' 0 2O 4O 8O GRAPHIC SCALE: 1"=40' AREA SQ. FEET ACRES SQ. METERS 287 0.01 ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 200 IRVINE, CA 92618 (949) 727-7099 FAX:(949) 727-7097 L4 >. 105- 1 2' 0 SHEET 1 OF 1 O.R. 4788-460 O.R. 2269-81 PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 3757 DATE LICENSE EXPIRES 06/30/2004 EXHIBIT "A' PARCEL 106-1 THAT PORTION OF LOT I OF TRACT NO. 10563, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 446 AT PAGES 14-16 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGI'NN1'NG (P.O.B.) AT THE SOUTHWESTERLY CORNER OF THE PARCEL DESCRIBED IN A GRANT DEED RECORDED JANUARY 18, 1989 AS INSTRUHENT NO. 89-030205 IN THE OFFICE OF THE RECORDER OF SAID COUNTY; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL NORTH 60057'34'' EAST 26.28 FEET TO A POINT ON THE NORTHEASTERLY LINE OF SAID LOT 1; THENCE ALONG THE SAID NORTHEASTERLY LINE SOUTH 49059'54'' EAST 5.93 FEET; THENCE LEAVING SAID NORTHEASTERLY LINE SOUTH 63049'08'' WEST 14.05 FEET; THENCE SOUTH 37039'38'' WEST 120.62 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT 1, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, THE RADIUS OF WHICH BEARS NORTH 55°17'16'' WEST 1250.00 FEET; THENCE NORTHERLY ALONG SAID CURVE 89.84 FEET THROUGH A CENTRAL ANGLE OF 04007'04'' TO THE BEGTNNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY, THE RADIUS OF WHICH BEARS SOUTH 59024'20'' EAST 1150.00 FEET DISTANT; THENCE NORTHERLY ALONG SAID CURVE 19.99 FEET THROUGH A CENTRAL ANGLE OF 00059'46'' TO THE POINT OF BEGINNTNG. CONTAINING 640 SQUARE FEET = 0.01 ACRES, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT"R" A'I-FACHED HERETO AND BY REFERENCE MADE A PART THEREOF. L.S. BATEMAN, P.L.S. #3757 LICENSE EXPIRES ]UNE 30, 2004 DATE LOT TRACT NO, 10688 EXHIBIT "B" PARCEL 106-1 SHEET 1 PARCEL 106- 1 O.R. 13268- 1 O.R. I O.R. 7606- / / / / / 89-030205 / / / / / / O.R. 5182-7 / LINE TABLE LINE BEARING LENGTH L 1 N60'57'34 "E 26.28' L2 S49'59 '54 "E 5.93' LJ S6J'49 '08 "W 14.05' CURVE TABLE CURVE DEL TA RADIUS LENGTH C 1 04'07'04" 1250. 00' 89.84' C2 00'59'46" 1150.00' 19.99' ~50' 0 20 40 80 GRAPHIC SCALE: 1"=4-0' AREA SQ.640FEET ACRES0.01 SQ. METERS ASL Consulting Engineers 16241 LAGUNA CYN. RD. SUITE 200 IRVINE, CA 92618 N,(949) 727-7099 FAX:(949) 727-7097 OF 1 PREPARED UNDER THE DIRECTION OF L.S. BATEMAN, P.L.S. 3757 LICENSE EXPIRES 06/30/2004 DATE .,.., :