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HomeMy WebLinkAboutRUSSELL, SAMUEL L., ET. AL. 2 - 2004 INSURANCI: I'll)! ,d ," ' WORK M '{ '):,,)CtEU CLEHK Of COUNCIL DATb \1 , ¡J -0 L\ AGREEMENT FOR ACQUISITION OF -, REAL PROPERTY AND ESCROW INSTRUCTIONS G: AJPr 1Þl (!..;5ø:5~ THIS AGREEMENT, entered into this 5 day of A,or¡ I ,2004, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City"), and Bank One Trust Company, N,A., as Trustee of the Samuel I. Russell Trust dated 8/3/87 and Bank One Trust Company, N.A., as Trustee of the Edward P. Russell Trust (hereinafter called "Seller"), regardless of number or gender; A-2004-065 f> THE CITY OF SANTA ANA, CALIFORNIA WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase nom Seller, portions of real property (hereinafter referred to as "said real property" or "said portions of real property") described as follows: Certain portions of real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 820 South Grand A venue, Santa Ana, CA) Said sale and purchase of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: I. Convevance bv Seller. Seller agrees to convey said portions of real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveved. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said portions of real property shall be conveyed by Seller to City, as aforesaid, nee and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title, except the lease pertaining to the market business known as Nuno Bros. Market, and Nuno Brothers, Inc., dba Nuno Bros. Market ("Nuno Bros. Market") and except those exceptions shown in Paragraph 14 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be as above provided. 3. Title Insurance. Seller agrees to deliver to City at City's cost, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount TWENTY EIGHT THOUSAND THREE HUNDRED NINETEEN DOLLARS AND No/IOO ($28,319.00) insuring the title of the City to said real property is nee and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title, excepting the lease to Nuno Bros. Market and such specific title exceptions as City may hereinafter expressly approve, which approval shall not be unreasonably withheld. may hereinafter expressly approve, which approval shall not be unreasonably withheld. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days nom and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other escrow or closing costs incidental to the conveying of said portions of real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedure Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General Provisions of this Agreement. 5. Propertv Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept nom City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any) claims by Seller, severance damages, and relocation claims by Seller pursuant to Government Code §7260 et seq., the total sum of TWENTY EIGHT THOUSAND THREE HUNDRED NINETEEN DOLLARS AND No/lOO ($28,319.00). Seller agrees to remove flagpole by June 30, 2004. If not removed, the flagpole will be considered abandoned. It will be Seller's responsibility to remove, abandon or rework existing irrigation system before and after this construction project. Seller agrees that if such items are not removed by June 30, 2004, City may remove said items. City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days nom and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said portions of real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said portions of real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; 2 (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said portions of real property subject to the Nuno Bros. Market lease, which shall be made nee by Seller of all personal property. 8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 9. Heirs. Assigns. Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 11. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said portions of the real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 12. Just Compensation. Seller acknowledges and agrees that said purchase price is a settlement of just compensation for its interests in said portions of said real property. The purchase price includes any claim for Seller's interest in fixtures and equipment, goodwill (if any) and severance damages. The purchase price set forth herein is based upon the acquisition of portions of real property set forth herein, and for the widening of the Grand A venue project presently contemplated by the City. To the extent that the City takes or seeks to acquire additional rights, area, or improvements from the remainder of the Seller's real property not conveyed pursuant to this Agreement, within two (2) years nom the date of this agreement, the Seller may treat the purchase price herein as a withdrawal of Deposit of Compensation according to Article 2 of the Eminent Domain Law (Code Civ. Proc. § 1255.210, et seq.). In the event that the Seller treats the purchase price herein as a withdrawal of Deposit of Compensation, the Seller reserves all right to seek greater compensation. The Seller also reserves the right to treat the purchase price herein as a withdrawal of Deposit of Compensation according to Article 2 of the Eminent Domain Law (Code Civ. Proc. § 1255.210, et seq.) if the remainder property suffers physical damage nom the Grand Avenue widening project that is not shown on the current project plans or called for in the City's current construction contract for the project. In the event any of the foregoing matters occurs during the two (2) year period nom the date of this Agreement, City agrees that it will have no right to claim an estoppel by deed as a result of the Grant Deed given by Seller under this Agreement. 13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: Grand Properties Attn: Peggy Homan P.O. Box 13450 Palm Desert, CA 92255 14. Exceptions. City agrees to accept title to said real property subject to the following: Item 15 through 31 Part II of Schedule B of that certain First American Title Company Litigation Guarantee dated October 10, 2003. 3 15. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every and all issue(s) that were raised or could have been raised by Seller in connection with the acquisition of said real property by City. 16. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about portions of the Property sought to be acquired, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601). 17. Compliance With Environmental Laws. To the best of Seller's knowledge the portions of real Property comply with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 18. Contingencv. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said final acceptance and approval by the City. 19. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 20. Partial Invaliditv. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 4 21. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 23. No Reliance Bv One party On The Other. Each party has received independent legal advice nom its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 24. No Third Partv Beneficiarv. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 25. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 26. Authoritv to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each ofthe terms of this Agreement. 27. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body ofthis Agreement. 28. Release. Other than the rights reserved by Seller herein, the parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Notwithstanding the provisions of Civil Code section 1542, in the event the transaction closes, Seller hereby irrevocably and unconditionally releases and forever discharges the City and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with the City from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which Seller at any time heretofore had or claimed to have or which Seller at any time hereafter may have or claim to have, including, without limitation, any and all claims related or in any manner directly related to the acquisition of portions of the property. The parties have executed this Agreement as of the last date written below. Bank One Trust Comp~ N.A., as Trustee of the xRcmt Samuel:t. Russell Wil'Y IIlerie Ru33dl, ~alld'liOO<Wife Trust dated 8/3/87 Bv: dc~~tYu"-éL 'r,-.,~ Vice President 5 By: NEW SIGNATOR Bank One Trust Company, N.A. as Trustee of the WXkEdward P. Russell, a,~ Trust By: cI0e¿~,~);,,~ ~~fX~ Vice President jWi~~AHw~ ~ ~: CITY OF SANTA ANA BY: tf2ß}R David N. Ream City Manager ATTEST: //~ . '- ' .£:z«. -('. -<--<'=0' , - Patricia E. Healy Clerk ofthe Council Dated APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By:---fil;,L- ~ Lisa Storck Assistant City Attorney By: Valerie Russell 6 LEGAL DESCRIPTION EXHIBIT "A" THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: 10-0796-08 (A) 11-05-01 LEGAL DESC_RIPTION A.P. NO. 011-262-13 That pO<;iion òf Lot 11 of Tract No. 3416, in the 'City of Santa Ana, County of Orange, State of California, as shown on the map filed in Book 119, :Pages 14 'and 15: of Miscellaneous Maps, in the office of the County .Recorder of said County, described as follows: Beginning at the Northerly terminus of that certain çourse in the Easterly line of said Lot , , 11 shòwn as hiving' a bearing and distance of "N 0°06'20" W 74.56' " on said Tract No. :' , 3416; thence South 1 °04'27" West 74.56 feet along said Easterly line to the ßoutheast comer of said Lot II; thence leaving said Easterly line North 89°55'33" West 7.00 feet along the Southerly line of said Lot 11 to a line being parallel with and 7.00 feet Westerly of said Easterly line; thence leaving said Southerly line North 1 °04'27" East 74.99 feet along said parallelline; thence leaving said parallc1line North 44°55'10" West 35.35 feet to the Northerly line of said Lot 11; thence along said Northerly line and the Northeasterly line .of said Lot II, the following courses: South 89°55'33" East 6,99 feet to the beginning of a curve concave Southwesterly having a radius of25.00 feet, Easterly, Southeasterly and Southerly 39.71 feet along said curve through a central angle of 91 °00'00" to the POINT OF BEGINNING, Containing an area of 0.020 acres, more or less. Subject to covenants, conditions, reservations, 'restrictions, rights of way and easements, if any, of record. a~ éÝ U;''''~ /JA.~ŒS L. GARVIN, PLS 6343 , , 7 ~(f.~:::...--. . .~.~.- :....-~ ::~;~c~:'~.~ ,. --.--. . . -'-.7':';"'~-=:'-t" -.-:-' _:-:~.::. r - ." . .' _.. --.. - . I :. / ------------t- € WAKEHAM A VENUE A ~ 9100'00' '- r- - -- N89'55',JJ"W ~::: ~::~: , . ----::f---'N89 '55 ',J,J "W LEGEND, - .:1 - . 6.99' (XXX) RECORD DATA' - - - - I N'LY LINE Lor-II-:-r - PER m. NO. " TR. NO. 3416 ~ 3416, M.M. 119/14-15 I - I YRAc-r I I /'/11\11 I iiD / i4~ið I I I 1 I I _____1_____- .....w [j" '=:J . . La -r jO HUITf -ZOLlARS Huitt-Zo!!ars. Inc. 4..'10 Exche.:>Qe, SUit., 200, Irme, CA 1;12602-1309 (7\4) 7J..I-5>:JO \1-5-2=1 . 7 c, c, ~ ~ )\,(':1 8~ A -It:' ..... 'JU j -j' JD >'< .... I £S'LYUNE LOr II, ~ ~ !!!:..NO. ,J41~ - :z: , -. , ". '., '.", .-. , 7.00' \ N89'5S'JJ"W Lai ij' COURSE DATA. ø NH"55'10.W 35,J5' Lai 12 SKETCH TO ACCOMPANY , A LEGAL DESCRIPTION RIGHT-OF-WA Y GRAND A VENUE. (A.P. NO. 011-262-13) cd Ô c.: ..... C)'" ..,:;¡: !<.II-¡ ~c ..,~ )... I¡;;~ , . '" "'''' ")") ..' ,,;;: '- ~ ..... ' ~I ¡:; '~ "\ W ~ t ~ ~ rfï I .= I~ ~ '" I ~ ~ I ¿S c:;.. Þ; ~ I ~ Q I ~ ~I~ I ~ :z: . I ,JO' , .! -f I Sc.A.:..E 1 "=50' C<'....'MI BY },/PD ""£= BY JLG OM;: 11 '5 '2001 .£a /t'e. 10079608 c: \tW79508\D:\EX07950èF.DW:; I ! i . . When recorded, please mail this I instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-JO Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER USE GOVERNMENT COPE SECTION 6103, SPACE ABOVE TIllS llNE FOR RECORDER'S CANCEL APPIlOVED AS TO APPROVED BY DESCRIPTION DESCRIPTION A.P RJW MAP PROJECT TAXES FORM BY AnY DIRECTOR WRmEN BV CHECKED-O.K. NUMBER NUMBER NUMBER X JLG 011-262-01 SE14S 1755 Portion °r-soo S¡:d Avenue'm~antaAna Addreø I ximate Location DEED NUMBER GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the undersigned Do Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, fee simple title, subject to lease, to a portion of the real property in the City of Santa Ana, County of Orange, State of California, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; This Deed is given subject to the provisions of Exhibit "B" attached hereto and by this reference made a part hereof. Bank One Trust Company, N.A., as Trustee of the Samuel I. Russell Trust Dated Augnst 3, 1987 By: Deirdre M. Santana, Vice President On before me, American National Bank and Trust Company of Chicago, Successor Trustee, n/k/a Bank One Trust Company, N.A. For Edward P. Russell Trust Dated August 3,1987 By: STATE OF CALIFORNIA COUNTY OF jss, j Deirdre M. Santana, Vice President personally appeøred personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose narne(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in hislher/their authorized capacity(ies). and that by hislherl their signatures) on the instrument the person(s) or the entity upon be. half of which the person(s) acted. executed the instrument. WITNESS my hand and official seaL Signature (I'his area for official notary seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE . . EXHIBIT "B" This deed is made subject to the provisions of that certain Agreement for Acquisition of Real Property and Escrow Instructions dated , 2004, and entered into by the undersigned grantors and the City of Santa Ana (" Agreement"). The terms of said Agreement are deemed integrated herein by this reference. In particular, but without limitation on the foregoing, by acceptance of this deed, grantee agrees that it will not be entitled to claim an estoppel by deed defense in the event that certain matters set forth in Section 12 of the Agreement occur within two (2) years of the date of recordation hereof, which matters may entitle the grantors to seek additional compensation for the conveyance of the property described in this deed.